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The 



NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



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a 



CONa 

TITUl II (A I 

tiom| u 



IK LZGIBUS„ 



EXECUTIVE ORDER 



PROPOSED RULES 

Environment, Health, and Natural Resources 

Human Resources 

Justice 

Labor 

Mortuary Science 

Nursing, Board of 

Plumbing, Heating and Fire Sprinkler Contractors 

Professional Engineers and Land Surveyors 

Sanitarian Examiners 

Secretary of State 

Transportation 



LIST OF RULES CODDJ1ED 



RRC OBJECTIONS 



CONTESTED CASE DECISIONS 



s *f**\ 



seem :!>■£" 



AUG 19 1994 

KATHRINE R EVERETT 
LAW LIBRARY 



ISSUE DATE: August 15, 1994 
Volume 9 • Issue 10 • Pages 667 - 779 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 

The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the General 
Statutes. All proposed administrative rules and notices of public 
hearings filed underG.S. 150B-21. 2 must be published in the Register. 
The Register will typically comprise approximately fifty pages per 
issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription at 
a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars ($8.00). 

Requests for subscription to the North Carolina Register should be 
directed to the Officeof Administrative Hearings, P. O. Drawer 27447, 
Raleigh, N.C. 27611-7447. 

ADOPTION, AMENDMENT, AND REPEAL OF 
RULES 

The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 1 50B 
of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must first 
publish notice of the proposed action in the North Carolina Register. 
The notice must include the time and place of the public hearing (or 
instructions on how a member of the public may request a hearing); a 
statement of procedure for public comments; the text of the proposed 
rule or the statement of subject matter; the reason for the proposed 
action; a reference to the statutory authority for the action and the 
proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days must 
elapse following publication of the notice in the North Carolina 
Register before the agency may conduct the public hearing and at least 
30 days must elapse before the agency can take action on the proposed 
rule. An agency may not adopt a rule that differs substantially from the 
proposed form published as part of the public notice, until the adopted 
version has been published in the North Carolina Register for an 
additional 30 day comment period. 

When final action is taken, the promulgating agency must file the 
rule with the Rules Review Commission (RRC). After approval by 
RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative Hearings 
for publication in the North Carolina Administrative Code (NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or before 
filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may issue tempo 
rary rules. Within 24 hours of submission to OAH, the Codifier o 
Rules must review the agency ' s written statement of findings of nee< 
for the temporary rule pursuant to the provisions in G.S. 150B-21.1. 1 
the Codifier determines that the findings meet the criteria in G.S 
150B-21.1, the rule is entered into the NCAC. If the Codifie 
determines that the findings do not meet the criteria, the rule is returnee 
to the agency. The agency may supplement its findings and resubmi 
the temporary rule for an additional review or the agency may respon 
that it will remain with its initial position. The Codifier, thereafter, wi 
enter the rule into the NCAC. A temporary rule becomes effectiv 
either when the Codifier of Rules enters the rule in the Code or on th 
sixth business day after the agency resubmits the rule without changi 
The temporary rule is in effect for the period specified in the rule or 1 8 
days, whichever is less. An agency adopting a temporary rule mui 
begin rule-making procedures on the permanent rule at the same tim 
the temporary rule is filed with the Codifier. 

NORTH CAROLINA ADMINISTRATIVE CODE 

The North Carolina Administrative Code (NCAC) is a compilatio 
and index of the administrative rules of 25 state agencies and 3 
occupational licensing boards. The NCAC comprises approximate! 
1 5,000 letter size, single spaced pages of material of which appro* 
mately 35% is changed annually. Compilation and publication of th 
NCAC is mandated by G.S. 150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency i 
assigned a separate title which is further broken down by chapter 
Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of tw 
dollars and 50 cents ($2.50) for 10 pages or less, plus fiftee 
cents ($0.15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling i 
excess of 15,000 pages. It is supplemented monthly wit 
replacement pages. A one year subscription to the fu 
publication including supplements can be purchased ft 
seven hundred and fifty dollars ($750.00). Individual vo 
umes may also be purchased with supplement service. R< 
newal subscriptions for supplements to the initial publicatio 
are available. 

Requests for pages of rules or volumes of the NCAC should I 
directed to the Office of Administrative Hearings. 

CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, paj 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to Volun 
1 , Issue 1 , pages 1 01 through 201 of the Afort/i Carolina Registerissut 
on April 1, 1986. 



FOR INFORMATION CONTACT: Officeof Administra- 
tive Hearings, ATTN: Rules Division, P.O. Drawer 27447, 
Raleigh, North Carolina 2761 1-7447, (919) 733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella St., 

Deputy Director 
Molly Masich, 

Director o/APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 

This publication is printed on permanent, 
acid-free paper in compliance with 
G.S. 125-11.13. 



ISSUE CONTENTS 



EXECUTIVE ORDER 

Executive Order 59 . . 



667 



n. PROPOSED RULES 

Environment, Health, and 
Natural Resources 

Radiation Protection Commission . 678 
Human Resources 

Departmental Rules 668 

Facility Services 668 

Justice 
North Carolina Sheriffs' Education 
& Training Standards 

Commission 670 

Labor 

OSHA 675 

Licensing Boards 

Mortuary Science 720 

Nursing, Board of 724 

Plumbing, Heating and Fire 
Sprinkler Contractors, 

Examiners 725 

Professional Engineers and 

Land Surveyors 728 

Sanitarian Examiners 730 

Secretary of State 
Land Records Management 

Division 712 

Securities Division 709 

Transportation 
Highways, Division of 718 

m. LIST OF RULES CODIFIED ... 742 

IV. RRC OBJECTIONS 746 

V. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 750 

Text of Selected Decisions 

93 EHR 0930/0931 758 

94 DST 0045 768 

VI. CUMULATIVE INDEX 777 



NORTH CAROLINA REGISTER 

Publication Schedule 

(April 1994 - January 1995) 



Volume 
and 
Issue 

Number 


Issue 
Date 


Last Day 

for 

Filing 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 

Date for 

Public 

Hearing 

15 days 

from 

notice 


* End of 

Required 

Comment 

Period 

30 days 

from 

notice 


Last Day 

to Submit 

to RRC 


** Earliest 

Effective 

Date 


9:1 


04/04/94 


03/11/94 


03/18/94 


04/19/94 


05/04/94 


05/20/94 


07/01/94 


9:2 


04/15/94 


03/24/94 


03/31/94 


05/02/94 


05/16/94 


05/20/94 


07/01/94 


9:3 


05/02/94 


04/11/94 


04/18/94 


05/17/94 


06/01/94 


06/20/94 


08/01/94 


9:4 


05/16/94 


04/25/94 


05/02/94 


05/31/94 


06/15/94 


06/20/94 


08/01/94 


9:5 


06/01/94 


05/10/94 


05/17/94 


06/16/94 


07/01/94 


07/20/94 


09/01/94 


9:6 


06/15/94 


05/24/94 


06/01/94 


06/30/94 


07/15/94 


07/20/94 


09/01/94 


9:7 


07/01/94 


06/10/94 


06/17/94 


07/18/94 


08/01/94 


08/22/94 


10/01/94 


9:8 


07/15/94 


06/23/94 


06/30/94 


08/01/94 


08/15/94 


08/22/94 


10/01/94 


9:9 


08/01/94 


07/11/94 


07/18/94 


08/16/94 


08/31/94 


09/20/94 


11/01/94 


9:10 


08/15/94 


07/25/94 


08/01/94 


08/30/94 


09/14/94 


09/20/94 


11/01/94 


9:11 


09/01/94 


08/11/94 


08/18/94 


09/16/94 


10/03/94 


10/20/94 


12/01/94 


9:12 


09/15/94 


08/24/94 


08/31/94 


09/30/94 


10/17/94 


10/20/94 


12/01/94 


9:13 


10/03/94 


09/12/94 


09/19/94 


10/18/94 


11/02/94 


11/21/94 


01/01/95 


9:14 


10/14/94 


09/23/94 


09/30/94 


10/31/94 


11/14/94 


11/21/94 


01/01/95 


9:15 


11/01/94 


10/11/94 


10/18/94 


11/16/94 


12/01/94 


12/20/94 


02/01/95 


9:16 


11/15/94 


10/24/94 


10/31/94 


11/30/94 


12/15/94 


12/20/94 


02/01/95 


9:17 


12/01/94 


11/07/94 


11/15/94 


12/16/94 


01/03/95 


01/20/95 


03/01/95 


9:18 


12/15/94 


11/22/94 


12/01/94 


12/30/94 


01/17/95 


01/20/95 


03/01/95 


9:19 


01/03/95 


12/08/94 


12/15/94 


01/18/95 


02/02/95 


02/20/95 


04/01/95 


9:20 


01/17/95 


12/21/94 


12/30/94 


02/01/95 


02/16/95 


02/20/95 


04/01/95 



This table is published as a public service, and the computation of time periods are not to be deemed binding 
or controlling. Time is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Rule 
6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date 
of any public hearing, whichever is longer. See G.S. 1 5 0B-2 1.2(f) for adoption procedures. 
** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above, 
that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and 
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



Re\ised 03/94 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 59 

GOVERNOR'S TASK FORCE ON 

DRIVING WfflLE IMPALED 

WHEREAS, the operation of motor vehicles on 
our highways by persons while impaired consti- 
tutes a serious threat to the health and safety of 
our citizens; and 

WHEREAS, a large portion of the fatal accidents 
on our highways are alcohol related; and 

WHEREAS, the Governor's Five- Year Highway 
Safety Initiative is now in its second year and is 
preparing to make driving while impaired its area 
of emphasis; and 

WHEREAS, the State of North Carolina must 
consider strong measures designed to deter and 
prevent the operation of motor vehicles by persons 
while impaired; 

NOW, THEREFORE, by the authority vested in 
me as Governor by the laws and Constitution of 
the State of North Carolina, IT IS ORDERED: 

Section 1. Establishment. 

The Governor's Task Force on Driving While 
Impaired is established. The Task Force shall be 
an ad hoc committee of the Governor's Highway 
Safety Commission. The Task Force shall be 
composed of not more than thirty-five members 
appointed by the Governor to serve at the pleasure 
of the Governor. The Governor shall designate 
one of the members as Chair and one as Vice 
Chair. The members of the Governor's Highway 
Safety Commission shall be ex officio, voting 
members of the Task Force. Additional members 
shall include, but not be limited to, representatives 
of law enforcement, the judicial system and the 
General Assembly. 

Section 2. Meetings. 

The Task Force shall meet regularly at the call of 
the Chair and may hold special meetings at any 
time at the call of the Chair, or the Governor. 
The Task Force is authorized to conduct public 
hearings. 

Section 3. Expenses. 

Members of the Task Force shall be reimbursed 
for such necessary travel and subsistence expenses 
as are authorized by N.C.G.S. 138-5. Funds for 
reimbursement of such expenses shall be made 
available from funds authorized by the Governor's 



Highway Safety Program. 

Section 4. Duties. 

The Task Force shall have the following duties: 

(a) Review the General Statutes of North 
Carolina applicable to driving while 
impaired; 

(b) Review proposals in other states designed 
to deter driving while impaired; 

(c) Consider proposals for North Carolina; 

(d) Recommend actions to reduce driving 
while impaired; and 

(e) Other such duties as assigned by the 
Chair or the Governor. 

Section 5. Reports. 

The Task Force shall present a report to the 
Governor no later than January 10, 1995. The 
Task Force shall be dissolved when its report is 
presented to the Governor. 

This Order is effective immediately and shall 
expire January 31, 1995. 

Done in the Capital City of Raleigh, North 
Carolina, this the 26th day of July, 1994. 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



667 



PROPOSED RULES 



TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that DHR, Secretary's Office intends to 
adopt rules cited as 10 NCAC lO .0001 - .0005. 

1 he proposed effective date of this action is 
November 1, 1994. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): Written demand for a public hearing may 
be directed to Jack Jenkins, General Counsel, 
N.C. Department of Human Resources, 101 Blair 
Drive, Raleigh, NC 27603 on or before September 
8, 1994. 

IVeason for Proposed Action: 45 CFR 80. 7, a 
grievance procedure in order for the Department 
to be in full compliance in which to continue to 
receive federal monies. 

(comment Procedures: Written comments may be 
directed to Jack Jenkins, General Counsel, N. C. 
Department of Human Resources, 101 Blair Drive, 
Raleigh, NC 27603 on or before September 14, 
1994. 

CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER lO - TITLE VI OF THE 

CIVIL RIGHTS ACT OF 1964 GRIEVANCE 

PROCEDURES 

.0001 APPLICABILITY AND SCOPE 

This Subchapter provides for the prompt and 
equitable resolution of complaints against any 
program or activity administered by the Depart- 
ment of Human Resources, which receives federal 
financial assistance, alleging discrimination based 
upon race, color, or national origin in violation of 
Title VI of the Civil Rights Act of 1964. 

Authority G.S. 143B-10(j)(2); 45 CF.R. Part 80. 7. 

.0002 COMPLAINTS 

(a) A complaint shall be filed in writing, contain 
the name and address of the person filing it. or his 
designee and briefly describe the alleged violation 
of 45 CFR Part 80. 

(b) A complaint shall be filed with the appropri- 



ate division or institution ADA Coordinator not 
later than 180 days from the date of the alleged 
discrimination, unless the time for filing is extend- 
ed by the Secretary of the Department of Human 
Resources or his designee. 

Authority G.S. 143B-10(j)(2); 45 CF.R. Part 80.7. 

.0003 INVESTIGATION 

An investigation of the allegations of the com- 
plaint shall be conducted by the ADA Coordinator 
or his designee. The investigation shall afford all 
interested persons and their representatives, if any. 
an opportunity to submit evidence relevant to the 
complaint. 

Authority G.S. 143B-10(j)(2); 45 CF.R. Part 80.7. 

.0004 RESOLUTION OF MATTERS 

(a) If the investigation indicates a failure to 
comply with the Act, the Division Director or his 
designee will so confirm the recipient and the 
matter will be resolved by informal means when- 
ever possible. 

(b) If the matter cannot be resolved by informal 
means, then the Division Director or his designee 
shall refer the matter to the United States Depart- 
ment of Justice with a recommendation that appro- 
priate proceedings be brought or proceed under 
any a pplicable state or local law. 

(c) If an investigation does not reveal a compli- 
ance issue, the ADA Coordinator or his designee 
will inform the recipient and the complainant, if 
any, in writing within 30 days after the investiga- 
tion has been completed. 

Authority G.S. 143B-10(j)(2); 45 CF.R. Part 80. 7. 

.0005 RECONSIDERATION 

The complainant or recipient may request a 
reconsideration in accordance with the law a pplied 
in which the complaint was resolved. 

Authority G.S. 143B-10(j)(2); 45 CF.R. Part 80. 7. 
****************** 

J\otice is hereby given in accordance with G.S. 
150B-21.2 that the Division of Facility Services 
intends to amend rule cited as 10 NCAC 3R .0305. 

1 he proposed effective date of this action is 
November 1, 1994. 



668 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



PROPOSED RULES 



The public hearing will be conducted at 10:00 
a.m. on September 14, 1994 at the Council Build- 
ing, 701 Barbour Drive, Room 201, Raleigh, NC 
27603. 

Reason for Proposed Action: Revises the certifi- 
cate of need (CON) application fees to comply with 
Senate Bill 204 which was ratified on July 18, 
1993 and requires the CON Section to generate 
sufficient revenue to offset the entire cost of the 
CON Program, 

Csomment Procedures: All written comments must 
be submitted to Jackie Sheppard, APA Coordina- 
tor, Division of Facility Services, P.O. Box 29530, 
Raleigh, NC 27626 no later than September 15, 
1994, oral comments may be made at the hearing. 

Editor's Note: This Rule was filed as a tempo- 
rary amendment effective August 12, 1994 for a 
period of 180 days or until the permanent rule 
becomes effective, whichever is sooner. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3R - CERTIFICATE 
OF NEED REGULATIONS 

SECTION .0300 - APPLICATION 
AND REVD2W PROCESS 

.0305 FTLING APPLICATIONS 

(a) An application will not be reviewed by the 
agency until it is filed in accordance with this 
Rule. 

(b) An original and a copy of the application 
shall be received by the agency no later than 5:00 
p.m. on the last working day prior to 15 days 
before the first day of the scheduled review period. 
An application will not be included in a scheduled 
review if it is not received by the agency by this 
deadline. Each applicant shall transmit, with the 
application, a fee to be determined according to 
the following formula: 

(1) With each application proposing ne 
capital expenditure or the addition of a 
sixth bed to an existing or approved 
five bed intermediate care facility for 
the mentally retarded, the proponent 
shall transmit a fee in the amount of 
two thousand dollars ($2,000). 

(2) With each application, other than those 



referenced in Subparagraph (b)(1) of 
this Rule, proposing no capital expendi- 
ture or a capital expenditure of up to, 
but not including, five hundred thou 
sand one million dollars ( $500,000 
$1.000.000 ), the proponent shall trans- 
mit a fee in the amount of two thousand 
five — hundred three thousand seven 
hundred fifty dollars ( $2,500 $3.750 ). 
(3) With each application, other than those 
referenced in Subparagraph £b)(l) of 
this Rule, proposing a capital expendi- 
ture of five — hundred — thousand one 
million dollars ( $500,000 $1.000.000 ) 
or greater, the proponent shall transmit 
a fee in the amount of two thousand 
five hundred dollars ($2,500) three 
thousand seven hundred fifty dollars 
($3.750) , plus an additional fee equal to 
.0025 .003 of the amount of the pro- 
posed capital expenditure in excess of 
five thousand dollars ($500,000) one 
million dollars ($1.000,000) . The 
additional fee shall be rounded to the 
nearest whole dollar. In no case shall 
the total fee exceed seventeen thousand 
five hundred dollars ($17,500). 

(c) After an application is filed, the agency shall 
determine whether it is complete for review. An 
application shall not be considered complete if: 

(1) the requisite fee has not been received 
by the agency; or 

(2) a signed original and copy of the appli- 
cation have not been submitted to the 
agency on the appropriate application 
form. 

(d) If the agency determines the application is 
not complete for review, it shall mail notice of 
such determination to the applicant within five 
business days after the application is filed and shall 
specify what is necessary to complete the applica- 
tion. If the agency determines the application is 
complete, it shall mail notice of such determination 
to the applicant prior to the beginning of the 
applicable review period. 

(e) Information requested by the agency to 
complete the application must be received by the 
agency no later than 5:00 p.m. on the last working 
day before the first day of the scheduled review 
period. The review of an application will com- 
mence in the next applicable review period that 
commences after the application has been deter- 
mined to be complete. 

(f) If an application is withdrawn by the appli- 
cant before the first day of the applicable review 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



669 



PROPOSED RULES 



period, the application fee, if paid, will be refund- 
ed to the applicant. 

Statutory Authority G.S. 131E-177; 131E-182; S.L. 
1983, c. 713. 

TITLE 12 - DEPARTMENT OF 
JUSTICE 

l\otice is hereby given in accordance with G.S. 
150B-21. 2 that the North Carolina Sheriffs ' Educa- 
tion and Training Standards Commission intends to 
amend rules cited as 12 NCAC 10B .0204 -.0205, 
.0502, .0904, .2101 - .2102 and .2105. 

1 he proposed effective date of this action is 
January 1 , 1995. 

1 he public hearing will be conducted at 9:00 
a.m. on September 14, 1994 at the Regional High 
Technology Center, 10 Industrial Park Drive, 
Vbynesville, North Carolina 28786. 

I\.eason for Proposed Action: To make various 
technical changes for purposes of updating and 
clarifying existing rules. 

(comment Procedures: Any person interested in 
these rules may present oral or written comments 
relevant to the proposed action at the public rule 
making hearing. Written statements can be sub- 
mitted beginning August 15, 1994 through Septem- 
ber 14, 1994 and must be directed to the Sheriffs' 
Standards Division. The proposed rules are 
available for public inspection and copies may be 
obtained at the following address: Dept. of Jus- 
tice, Sheriffs' Standards Division, PO Box 629, 
Raleigh, NC 27602-0629. 

CHAPTER 10 - N.G SHERIFFS' 

EDUCATION AND TRAINING 

STANDARDS COMMISSION 

SUBCHAPTER 10B - NC SHERD7FS' 

EDUCATION AND TRAINING 

STANDARDS COMMISSION 

SECTION .0200 - ENFORCEMENT RULES 

.0204 SUSPENSION: REVOCATION: 

OR DENIAL OF CERTDJICATION 

(a) The Commission shall revoke or deny the 



certification of a justice officer when the Commis- 
sion finds that the applicant for certification or the 
certified officer has committed or been convicted 
of: 

(1) a felony unless pardoned by the Gover- 
nor; or 

(2) a crime for which the authorized pun- 
ishment could have been imprisonment 
for more than two years. 

(b) The Commission shall revoke, deny, or 
suspend the certification of a justice officer when 
the Commission finds that the applicant for certifi- 
cation or the certified officer: 

(1) has not enrolled in and satisfactorily 
completed the required basic training 
course in its entirety within a time 
period specified by the Commission; or 

(2) fails to meet or maintain any of the 
minimum employment or certification 
standards required by 12 NCAC 10B 
.0300; or 

(3) fails to satisfactorily complete the mini- 
mum in-service training requirements as 
presented in 12 NCAC 10B .2000 and 
.2100; or 

(4) has refused to submit to the drug screen 
as required in 12 NCAC 10B .0301(6) 
or .0406(b)(4) or in connection with an 
application for or certification as a 
justice officer or a criminal justice 
officer as defined in 12 NCAC 9 A 
.0103(6); or 

(5) has produced a positive result on any 
drug screen reported to the Commission 
as specified in 12 NCAC 10B .0410 or 
reported to any commission, agency, or 
board established to certify, pursuant to 
said commission, agency, or boards' 
standards, a person as a justice officer 
or a criminal justice officer as defined 
in 12 NCAC 9A .0103(6), unless the 
positive result is explained to the Com- 
mission's satisfaction. 

(c) The Commission may revoke, deny, or 
suspend the certification of a justice officer when 
the Commission finds that the applicant for certifi- 
cation or certified justice officer: 

(1) has knowingly made a material misrep- 
resentation of any information required 
for certification or accreditation from 
the Commission or the North Carolina 
Criminal Justice Education and Training 
Standards Commission; or 

(2) has knowingly and designedly by any 
means of false pretense, deception, 



6 70 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



PROPOSED RULES 



fraud, misrepresentation or cheating 
whatsoever, obtained or attempted to 
obtain credit, training or certification 
from the Commission or the North 
Carolina Criminal Justice Education and 
Training Standards Commission; or 

(3) has knowingly and designedly by any 
means of false pretense, deception, 
fraud, misrepresentation or cheating 
whatsoever, aided another in obtaining 
or attempting to obtain credit, training, 
or certification from the Commission or 
the North Carolina Criminal Justice 
Education and Training Standards Com- 
mission. This Rule shall also apply to 
obtaining or attempting to obtain 
in-service firearms requalification as 
required by 12 NCAC 10B .2000 and 
.2100; or 

(4) has been removed from office by de- 
cree of the Superior Court in accor- 
dance with the provisions of G.S. 
128-16 or has been removed from 
office by sentence of the court in 
accord with the provisions of G.S. 
14-230t i or 

(5) has been denied certification or had 
such certification suspended or revoked 
by the North Carolina Criminal Justice 
Education and Training Standards 
Commission. 

(d) The Commission may revoke, suspend or 
deny the certification of a justice officer when the 
Commission finds that the applicant for 
certification or the certified officer has committed 
or been convicted of: 

(1) a crime or unlawful act defined in 12 
NCAC 10B .0103(10)(b) as a Class B 
misdemeanor and which occurred after 
the date of initial certification; or 

(2) a crime or unlawful act defined in 12 
NCAC 10B .0103(10)(b) as a Class B 
misdemeanor within the five-year 
period prior to the date of appointment; 
or 

(3) four or more crimes or unlawful acts 
defined in 12 NCAC 10B .0103(10)(b) 
as Class B misdemeanors regardless of 
the date of commission or conviction; 
or 

(4) four or more crimes or unlawful acts 
defined in 12 NCAC 10B .0103(10)(a) 
as a Class A misdemeanor, each of 
which occurred after the date of initial 
certification; or 



(5) four or more crimes or unlawful acts 
defined in 12 NCAC 10B .0103(10)(a) 
as a Class A misdemeanor except the 
applicant may be certified if the last 
conviction or commission occurred 
more than two years prior to the date of 
appointment; or 

(6) any combination of four or more crimes 
or unlawful acts defined in 12 NCAC 
10B .0103(10)(a) as a Class A 
misdemeanor or defined in 12 NCAC 
10B .0103(10)(b) as a Class B 
misdemeanor regardless of the date of 
commission or conviction. 

(e) Without limiting the application of G.S. 17E, 
a person who has had his certification suspended 
or revoked may not exercise the authority or 
perform the duties of a justice officer during the 
period of suspension or revocation. 

(f) Without limiting the application of G.S. 17E, 
a person who has been denied certification may not 
be employed or appointed as a justice officer or 
exercise the authority or perform the duties of a 
justice officer. 

Statutory Authority G.S. 17E-7. 

.0205 PERIOD OF SUSPENSION: 
REVOCATION: OR DENIAL 

When the Commission suspends, revokes, or 
denies the certification of a justice officer, the 
period of sanction shall be: 

(1) permanent where the cause of sanction is: 

(a) commission or conviction of a felony; 
or 

(b) commission or conviction of a crime 
for which authorized punishment 
included imprisonment for more than 
two years; or 

(c) the second revocation, suspension, or 
denial of an officer's certification for 
any of the causes requiring a five-year 
period of revocation, suspension, or 
denial as set out in Item (2) of this 
Rule. 

(2) not less than five years where the cause 
of sanction is: 

(a) commission or conviction of offenses as 
specified in 12 NCAC 10B .0204(d)£D 
and (4); or 

(b) material misrepresentation of any 
information required for certification or 
accreditation from the Commission or 
the North Carolina Criminal Justice 
Education and Training Standards 



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671 



PROPOSED RULES 



Commission; or 

(c) knowingly and designedly by any 
means of false pretense, deception, 
fraud, misrepresentation or cheating 
whatsoever, obtained or attempted to 
obtain credit, training or certification 
from the Commission or the North 
Carolina Criminal Justice Education and 
Training Standards Commission; or 

(d) knowingly and designedly by any 
means of false pretense, deception, 
fraud, misrepresentation or cheating 
whatsoever, aiding another in obtaining 
or attempting to obtain credit, training, 
or certification from the Commission or 
the North Carolina Criminal Justice 
Education and Training Standards 
Commission. This Rule shall also 
apply to obtaining or attempting to 
obtain in-service firearms 
requalification as required by 12 NCAC 
10B .2000 and .2100; or 

(e) failure to make either of the 
notifications as required by 12 NCAC 
10B .0301(a)(7); or 

(f) removal from office under the 
provisions of G.S. 128-16 or the 
provisions of G.S. 14-230; or 

(g) a positive result on a drug screen, or a 
refusal to submit to drug testing both 
pursuant to 12 NCAC 10B .0301 and 
12 NCAC 10B .0406, or in connection 
with an application for certification as 
a criminal justice officer as defined in 
12 NCAC 9A .0103(6). 

(h) the Commission may either reduce or 
suspend the periods of sanction under 
this Item or substitute a period of pro- 
bation in lieu of revocation, suspension 
or denial following an administrative 
hearing. This authority to reduce or 
suspend the period of sanction may be 
utilized by the Commission when exten- 
uating circumstances brought out at the 
administrative hearing warrant such a 
reduction or suspension, in the discre- 
tion of the Commission. 
(3) for an indefinite period, but continuing so 
long as the stated deficiency, infraction, 
or impairment continues to exist, where 
the cause of sanction is: 

(a) failure to meet or satisfy relevant basic 
training requirements; or 

(b) failure to meet or maintain the mini- 
mum standards of employment or cer- 



tification; or 

(c) failure to meet or satisfy the in-service 
training requirements as prescribed in 
12 NCAC 10B .2100; or 

(d) commission or conviction of offenses as 
specified in 12 NCAC 10B .0204(dXi>, 
(2), (3), (5), and (6>- or 

(e) denial, suspension, or revocation of 
certification pursuant to 12 NCAC 10B 
.0204(c)(5). 

Statutory Authority G.S. 17E-4; 17E-7. 

SECTION .0500 - MINIMUM STANDARDS 
OF TRAINING FOR DEPUTY SHERD7FS 

.0502 BASIC LAW ENFORCEMENT 

TRAINING COURSE FOR DEPUTIES 

(a) The Commission hereby adopts as its re- 
quired minimum Basic Law Enforcement Training 
Course 444 hours of instruction to include the 
following identified topic areas and minimum 
instructional hours for each area: 

(1) Course Orientation 2 hours 

(2) Constitutional Law 4 hours 

(3) Laws of Arrest, Search and 

Seizure 16 hours 

(4) Mechanics of Arrest; Arrest 
Procedure 8 hours 

(5) Law Enforcement Communications and 
Information Systems 4 hours 

(6) Elements of Criminal Law 24 hours 

(7) Defensive Tactics 16 hours 

(8) Juvenile Laws and Procedures 8 hours 

(9) First Responder 40 hours 

(10) Firearms 40 hours 

(11) Patrol Techniques 16 hours 

(12) Crime Prevention Techniques 4 hours 

(13) Field Notetaking and Report 
Writing 12 hours 

(14) Mechanics of Arrest: Vehicle 

Stops 6 hours 

(15) Mechanics of Arrest: Custody Proce- 
dures 2 hours 

(16) Mechanics of Arrest: Processing Arrest- 
ee 4 hours 

(17) Crisis Management 10 hours 

(18) Special Populations 12 hours 

(19) Civil Disorders 8 hours 

(20) Criminal Investigation 28 hours 

(21) Interviews: Field and 

In-Custody 8 hours 

(22) Controlled Substances 6 hours 

(23) ABC Laws and Procedures 4 hours 

(24) Electrical and Hazardous Material 



672 



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PROPOSED RULES 





Emergencies 12 hours 


(25) 


Motor Vehicle Law 20 hours 


(26) 


Techniques of Traffic Law 




Enforcement 6 hours 


(27) 


Law Enforcement Driver 




Training 16 hours 


(28) 


Preparing For Court and Testifying in 




Court 12 hours 


(29) 


Dealing with Victims and 




the Public 8 4 hours 


(30) 


Ethics of Professional Law 




Enforcement 4 hours 


(31) 


(30) Civil Process 24 hours 


(32) 


(34) Supplemental Custody 




Procedures 8 hours 


(33) 


(33) Physical Fitness Training 43 hours 


(34) 


(33)-Testing 13 hours 



TOTAL HOURS 444 hours 

(b) The "Basic Law Enforcement Training 
Manual" as published by the North Carolina 
Justice Academy is hereby adopted by reference, 
and shall automatically include any later amend- 
ments and editions of the adopted matter as autho- 
rized by G.S. 150B- 14(c), to apply as basic curric- 
ulum for this Basic Law Enforcement Training 
Course. 

(c) Consistent with the curriculum development 
policy of the Commission, the Commission shall 
designate the developer of the Basic Law Enforce- 
ment Training Course curricula and such designa- 
tion shall be deemed by the Commission as ap- 
proval for the developer to conduct pilot Basic 
Law Enforcement Training Courses. Individuals 
who successfully complete such a pilot Basic Law 
Enforcement Training Course offering shall be 
deemed to have successfully complied with and 
satisfied the minimum training requirement. 

(d) The rules governing Minimum Standards for 
Completion of Training, codified as Title 12, 
Subchapter 9B, Section .0400 of the North Caroli- 
na Administrative Code, and previously adopted 
by the North Carolina Criminal Justice Education 
and Training Standards Commission, are hereby 
adopted by reference, and shall, automatically 
include any later amendments and editions of the 
adopted matter as authorized by General Statute 
150B-14(c) to apply to actions of the North Caroli- 
na Sheriffs' Education and Training Standards 
Commission. 

Statutory Authority G.S. 17E-4(a). 

SECTION .0900 - MINIMUM STANDARDS 



FOR JUSTICE OFFICER INSTRUCTORS 

.0904 GENERAL JAILER INSTRUCTOR 
CERTIFICATION 

An applicant for General Jailer Instructor Certifi- 
cation shall meet the following requirements: 

(1) Present documentary evidence demon- 
strating that the applicant: 

(a) has attended and successfully completed 
the North Carolina Sheriffs' Education 
and Training Standards Commission - 
approved Jail Training Course; or holds 
a valid general or grandfather certifica- 
tion as a jailer or correctional officer; 
and 

(b) holds General Instructor certification 
issued by the North Carolina Criminal 
Justice Education and Standards Com- 
mission. 

(2) Persons holding General Jailer Instructor 
Certification may teach any topical areas 
of instruction in the Commission - man- 
dated course with the exception of those 
outlined in 12 NCAC 10B .0908(a)(1) 
through (7). 

Statutory Authority G.S. 17E-4. 

SECTION .2100 - JUSTICE OFFICERS' 

FIREARMS IN-SERVICE TRAINING 

REQUALIFICATION PROGRAM 

.2101 DEPARTMENT HEAD 
RESPONSIBILITIES 

The Department head is responsible for ensuring 
that the Justice Officers' In-Service Firearms 
Training and Requalification Program is conducted 
according to minimum specifications as outlined in 
12 NCAC 10B .2103 and .2104. In addition, the 
Department head: 

(1) shall maintain copies of each course of 
fire adopted for use by his department 
and shall make those courses available 
for review by the Commission's repre- 
sentative upon request; and 

(2) shall maintain in each officer's personnel 
file a copy of a commission-approved 
Firearms Requalification Record Form 
which verifies that the officer did, or did 
not, successfully complete the minimum 
annual in-service firearms training re- 
quirement; and 

(3) may, where the officer fails to successful- 
ly qualify with any of the weapons speci- 
fied in 12 NCAC 10B .2104 prohibit 



9:10 



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673 



PROPOSED RULES 



(4) 



15} 



16} 



access or possession of such weapon 
while on duty or when acting in the 
discharge of that agency's official duties 
and may deny the officer authorization to 
carry such weapons concealed when 
off-duty, except when the officer is on 
his/her own premises; and 
shall notify report to the Division within 
five days when an officer foils to qualify 
pursuant to 12 NCAC 10B .2105; and 
once each calendar year a roster of all 



justice officers who fail to successfully 
complete the annual in-service firearms 
training and qualification and shall certify 
that all justice officers required to qualify 
pursuant to 12 NCAC 10B ,2104 who are 
not listed did successfully complete the 
trainine. This roster shall reflect the 
annual in-service firearms training and 
qualification status of all justice officers 
employed by the agency as of December 
31st of each calendar year and shall be 
received by the Division no later than the 
following January 15th; and 
shall report to the Division not later than 
January 15th of each calendar year a list 
of those justice officers employed by the 
agency who are not authorized by the 
sheriff to carry a weapon; and 
{§) may ensure that once each year all 
officers receive a review of departmental 
policies regarding the use of force. It is 
recommended by the Commission that all 
officers be tested on departmental 
policies. 



Statutory Authority G.S. 17E-4; 17E-7. 

.2102 INSTRUCTORS 

The following requirements and responsibilities 
are hereby established for instructors who conduct 
the Justice Officers' In-Service Firearms Training 
and Requalification Program: 

(1) The instructor shall hold "Specific 
Instructor Certification-Firearms" issued 
by the North Carolina Criminal Justice 
Education and Training Standards 
Commission; 

(2) The instructor shall deliver the training 
consistent with the minimum 
specifications as established by 12 NCAC 
10B .2103 and .2104; and shall be pres- 
ent at all times during which said training 
is being conducted to personally provide 
all supervision, classroom training, range 



training, and scoring for certification 
purposes; 

(3) The instructor shall document the suc- 
cessful or unsuccessful completion of 
training for each officer on a 
commission-approved Firearms 
Requalification Record Form and forward 
such form to each officer's department 
head; 

(4) The instructor shall submit to the agency 
head copies of all courses of fire used for 
qualification of justice officers in 
compliance with 12 NCAC 10B .2101(1). 

Statutory Authority G.S. 17E-4; 17E-7. 

.2105 FAILURE TO QUALIFY 

(a) Justice officers who fail to qualify pursuant 
to Rale 12 NCAC 10B .2104 by December 31st of 
each calendar year shall immediately surrender 
their weapons to the sheriff, upon his request, and 
s hall — have — 30 — days — m — which — te — obtain — fee 
qualification score required in — 12 NCAC — WB 
.210 4 . cease to carry weapons with which the 
justice officer failed to qualify. 

(b) Failure to qualify within the 30 day time 
period allowed in 12 NCAC 10B .2105(a) will 
result in the summary suspension of the justice 
officer's certification by the Commission. 

(c) No justice officer summarily suspended 
under Paragraph (b) of this Rule and in compliance 
with 12 NCAC 10B .0206(a)(3) may work as a 
certified justice officer until: 

(1) the sheriff forwards to the Commission 
documentary evidence verifying that the 
officer has complied with the require- 
ments of 12 NCAC 10B .2103 and 
.2104; and 

(2) the justice officer and the sheriff re- 
ceive from the Commission documenta- 
tion that the Commission has terminated 
the suspension and reinstated the certifi- 
cation to the justice officer. 

(d) Any justice officer previously unauthorized 
to carry a weapon but whose status changed to 
"authorized to carry a weapon," must comply with 
the provisions set out in 12 NCAC 10B .2103 and 
.2104; and may not carry a firearm until: 

(1) the sheriff forwards to the Commission 
documentary evidence verifying that the 
officer has complied with the require- 
ments of 12 NCAC 10B .2103 and 
.2104; and 

(2) the justice officer and the sheriff re- 
ceive from the Commission documenta- 



674 



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August 15, 1994 



PROPOSED RULES 



tion that the Commission has amended carry a weapon" and all certification 

the officer's status to "authorized to files reflect the same. 

Statutory Authority G.S. 17E-4; 17E-7. 

TITLE 13 - DEPARTMENT OF LABOR 

Notice is hereby given in accordance with G.S. 150B-21.2 that the North Carolina Department of 
Labor/Division of Occupational Safety & Health intends to amend rule cited as 13 NCAC 07F .0101. 

1 he proposed effective date of this action is November 1, 1994. 

The public hearing will be conducted at 10:00 a.m. on September 7, 1994 at the Division of Occupational 
Safety & Health, 319 Chapanoke Road, Suite 105, Raleigh, NC 27603. 

Keason for Proposed Action: lb clarify in the General Industry Standards the interpretation of who is 
responsible for providing personal protective equipment to employees, and to make clarifying amendments to 
7F .0101(b). 

\somment Procedures: Persons wanting to present oral testimony at the hearing should provide a written 
summary of the proposed testimony to the Division three business days prior to the hearing date. Written 
comments will be accepted until September 14, 1994. Direct all correspondence to Jill F. Cramer, 
NCDOL/OSHA, 319 Chapanoke Road, Suite 105, Raleigh, NC 27603-3432. 

Fiscal Note: No expenditures of State or local funds is required by this proposed rule. A fiscal note was 
submitted to the Fiscal Research Division on July 22, 1994, OSBM on July 22, 1994, N.C League of 
Municipalities on July 22, 1994, and N. C. Association of County Commissioners on July 22, 1994. 

CHAPTER 7 - OSHA 

SUBCHAPTER 7F - STANDARDS 

SECTION .0100 • GENERAL INDUSTRY STANDARDS 

.0101 GENERAL INDUSTRY 

(a) The provisions for the Occupational Safety and Health Standards for General Industry, Title 29 of the 
Code of Federal Regulations Part 1910, are incorporated by reference except as follows: 

(1) Subpart H - Hazardous Materials, 29 CFR 1910.120, Hazardous waste operations and emergency 
response, §1910.120(q)(6) is amended by adding a new level of training: 
"(vi) First responder operations plus level. First responders at operations plus level are 
individuals who respond to hydrocarbon fuel tank leaks where the leaking tanks contain a hydrocarbon 
fuel which is used to propel the vehicle on which the tank is located. Only those vehicles designed 
for highway use or those used for industrial, agricultural or construction purposes are covered. First 
responders at the operations plus level shall have received at least training equal to first responder 
operations level and, in addition, shall receive training or have had sufficient experience to objectively 
demonstrate competency in the following areas and the employer shall so certify: 

(A) Know how to select and use proper specialized personal protective equipment provided to the first 
responder at operations plus level; 

(B) Understand basic hazardous materials terms as they pertain to hydrocarbon fuels; 

(C) Understand hazard and risk assessment techniques that pertain to gasoline, diesel fuel, propane 
and other hydrocarbon fuels; 



9:10 NORTH CAROLINA REGISTER August 15, 1994 675 



PROPOSED RULES 



(D) Be able to perform control, containment, and/or confinement operations for gasoline, diesel 
fuel, propane and other hydrocarbon fuels within the capabilities of the available resources and 
personal protective equipment; and 

(E) Understand and know how to implement decontamination procedures for hydrocarbon fuels. " 

(2) Subpart I -- Personal Protective Equipment -- 29 CFR 1910.132, General requirements, is amended 
at 29 CFR 1910.132(b) to read: "(b) Equipment. (1) Employer-provided equipment. It is the 
responsibility of the employer to provide, at no cost to the employee, all personal protective 
equipment which the employee does not wear off the jobsite for use off the job. 

(2) Employee-owned equipment. Where employees provide their own protective equipment, the 
employer shall be responsible to assure its adequacy, including proper maintenance, and sanitation 
of such equipment." 

(3) (3) Subpart Z -- Toxic and Hazardous Substances, 29 CFR 1910.1000, Air Contaminants: 
Re-adoption of revised permissible exposure limits as originally published in 54 FR (January 19, 
1989) pages 2496 -2533 and pages 2668 - 2695 as follows: 



"RESPIRATORY EFFECTS 



Chemical Name 


CAS No. 


Aluminum 


7429-90-5 


Bismuth telluride, Undoped 


1304-82-1 


Chlorine dioxide 


10049-04-4 


Chromium metal (as Cr) 


7440-47-3 


Coal Dust (<5% quartz) 


None 


Resp. fraction 




Coal Dust (>5% quartz) 


None 


Respirable quartz fraction 




Ethyl acrylate 


140-88-5 


Ferrovanadium dust 


12604-58-9 


Grain Dust (oat, wheat, barley) 


None 


Graphite, natural, 


7782-42-5 


Resp. Dust 




Indium & compounds (as In) 


7440-74-6 


Iron oxide (dust & fume) 


1309-37-1 


Methylene bis 


5124-30-1 


(4-Cychlohexylisocyanate) 




Mica, Respirable Dust 


12001-26-2 


Nitrogen dioxide 


10102-44-0 


Oxygen difiuoride 


7783-41-7 


Ozone 


10028-15-6 


Paraquat, Respirable Dust 


4685-14-7 


Silica, crystalline 


14464-46-1 


cristobalite, Respirable Dust 




Silica, crystalline quartz, 


14808-60-7 


Respirable Dust 




Silica, crystalline 


15468-32-3 


tridymite, Respirable Dust 




Silica, crystalline tripoli 


1317-95-9 


(as quartz) Respirable Dust 





PEL 

15 mg/m 3 TWA Total Dust 
5 mg/m 3 TWA Resp. fraction 
15 mg/m 3 TWA Total Dust 
5 mg/m 3 TWA Resp. fraction 
0. 1 ppm TWA 
0.3 ppm STEL 

1 mg/m 3 TWA 

2 mg/m 3 TWA 

0.1 mg/m 3 TWA 

5ppm TWA 

25 ppm STEL, Skin 

1 mg/m 3 TWA 

3 mg/m 3 STEL 
10 mg/m 3 TWA 
2.5 mg/m 3 TWA 

0.1 mg/m 3 TWA 

10 mg/m 3 TWA 

0.01 ppm Ceiling, Skin 

3 mg/m 3 TWA 

1 ppm STEL 

0.05 ppm Ceiling 

0. 1 ppm TWA 

0.3 ppm STEL 

0.1 mg/m 3 TWA, Skin 

0.05 mg/m 3 TWA 

0.1 mg/m 3 TWA 

0.05 mg/m 3 TWA 

0.1 mg/m 3 TWA 



676 



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NORTH CAROLINA REGISTER 



August 15, 1994 



PROPOSED RULES 



Silica, fused 


60676-86-0 


Respirable Dust 




Soapstone, total dust 


None 


Soapstone, Respirable Dust 


None 


Sulfur dioxide 


7446-09-5 


Sulfur tetrafluoride 


7783-60-0 


Talc (containing no asbestos) 


14807-96-6 


Respirable Dust 




Tin oxide (as Sn) 


7440-31-5 


Trimellitic anhydride 


552-30-7 


Wood dust, hard 


None 


Wood dust, soft 


None 


Wood dust, allergenic 


None 


(Western Red Cedar) 





0.1 mg/m 3 TWA 

6 mg/m 3 TWA 
3 mg/m 3 TWA 
2 ppm TWA 
5 ppm STEL 
0.1 ppm Ceiling 
2 mg/m 3 TWA 

2 mg/m 3 TWA 
0.005 ppm TWA 
5 mg/m 3 TWA 
10 mg/m 3 STEL 
5 mg/m 3 TWA 
10 mg/m 3 STEL 
2.5 mg/m 3 TWA 



AVOIDANCE OF CANCER 



Chemical Name 



CAS No. 



Acrylamide 


79-06-1 


Amitrole 


61-82-5 


Carbon tetrachloride 


56-23-5 


Chloroform 


67-66-3 


Chromic acid 


1333-82-0 


Dimethyl sulfate 


77-78-1 


2-Nitropropane 


79-46-9 


Perchloroethylene 


127-18-4 


o-Toluidine 


95-53-4 


p-Toluidine 


106-49-0 


Vinyl bromide 


593-60-2 


Vinyl cyclohexene dioxide 


106-87-6 



PEL 

0.03mg/m 3 TWA, Skin 

0.2 mg/m 3 TWA 

2 ppm TWA 

2 ppm TWA 

0.1 mg/m 3 Ceiling 

0. 1 ppm TWA, Skin 

10 ppm TWA 

25 ppm TWA 

5 ppm TWA, Skin 

2 ppm TWA, Skin 

5 ppm TWA 

10 ppm TWA, Skin." 

(3) Reserved 

(4) Subpart Z — Toxic and Hazardous Substances — incorporation by reference of modified final rule 
for 29 CFR 1910.1200, Hazard Communication, including Appendices A through E, published in 
59 FR (February 9, 1994) pages 6170 - 6184 except that 1910. 1200(b)(6)(H) is amended to read: 
"(ii) Any hazardous substance as such term is defined by the Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. 9601 et seq), when regulated 
as a hazardous waste under that Act by the Environmental Protection Agency;" 

(b) The parts of the Code of Federal Regulations adopted by reference in this Subchapter shall not 
automatically include any subsequent amendments thereto, except as follows: 

(1) Subpart H — Hazardous Materials: 

(A) Technical corrections at 1910.109(g)(4)(v), Explosives and Blasting Agents, published in 58 FR 
(March 29, 1993) page 16496 and adopted by th e North Carolina D e partm e nt of Labor effective 
on December 31, 1993. 

(B) Technical corrections at 1910. 1 10(d)(l 1), Storage and Handling of Liquefied Petroleum Gases, 
published in 58 FR (March 19, 1993) page 15089 and adopted by th e North Carolina D e partm e nt 
of Labor effective on December 31, 1993. 

(2) Subpart I ~ Personal Protective Equipment — addition of paragraphs (d), (e) and (f) to 1910.132 - 
General requirements; revisions to 1910.133 - Eye and face protection, 1910.135 - Head 
protection, 1910.136 - Foot protection; and addition of 1910.138 - Hand protection, including 
non-mandatory Appendices A and B, published in 59 FR (April 6, 1994) pages 16360 - 16364 and 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



677 



PROPOSED RULES 



adopted by the North Carolina Department of Labor effective on September 1, 1994; addition of 
paragraph (g) to 1910.132 - General requirements; technical and clarifying amendments to 
1910.133 - Eye and face protection, 1910.136 - Foot protection, and 1910.138 - Hand protection, 
as published in 59 FR (July 1, 1994) pages 33910 - 33911 and effective on September 1, 1994; 

(3) Subpart J — General Environmental Controls — typographical and clarifying corrections at 
1910.146, Permit-Required Confined Spaces, published in 58 FR (June 29, 1993) pages 34844 - 
34851 and adopted by the North Carolina Department of Labor effective on September 24, 1993; 
a metric equivalent addition of "1.52 m" to 1910.146 (k) (3) (ii) and revisions to "Atmospheric 
monitoring" section of Appendix E as published in 59 FR (May 19, 1994) pages 26114 - 26116 
and adopted by the North Carolina Department of Labor effective on September 1, 1994; 
corrections are to final rule for Permit-Required Confined Spaces as originally published in 58 FR 
4462 (January 14, 1993); 

(4) Subpart Z -- Toxic and Hazardous Substances: 

(A) Revocation of exposure limits in "Final rule limits" columns of Table Z-l-A at 1910.1000, Air 
Contaminants, published in 58 FR (June 30, 1993) pages 35338 - 35351 and adopted by the North 
Carolina Department of Labor effective on September 24, 1993. 

(B) Correction to Table Z-3 Mineral Dust at 1910.1000, Air Contaminants, published in 58 FR (July 
27, 1993) page 40191 and adopted by the North Carolina Department of Labor effective on 
December 31, 1993. 

(C) Typographical and technical corrections at 1910.1027, Cadmium, published in 58 FR (April 23, 
1993) pages 21778 - 21787 and adopted by the North Carolina Department of Labor effective on 
September 24, 1993; corrections are to final rule for Occupational Exposure to Cadmium as 
originally published in 57 FR 42101 (September 14, 1992). 

(c) Copies of the applicable Code of Federal Regulations sections referred to in this Subchapter are available 
to the public. Please refer to 13 NCAC 7A.0302 for the costs involved and from whom copies may be 
obtained. 

Statutory Authority G.S. 95-131; 95-133; 150B-21.6. 

TITLE ISA - DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

I\otice is hereby given in accordance with G.S. 150B-21.2 that EHNR - Radiation Protection Commission 
intends to amend rules cited as 15A NCAC .0104, .0117, .0343, .0350 - .0351, .0502 - .0515, .0517- .0520, 
. 1625 and adopt rules cited as 15A NCAC 11 .0356 - .0357, .0521 - .0523. 

1 he proposed effective date of this action is January 1, 1995. 

1 he public hearing will be conducted at 1:00 p.m. and 7:00 p.m. on September 20, 1994 at the Division of 
Radiation Protection, 3825 Barrett Drive, Room 101, Raleigh, NC 27609 . 

Ixeason for Proposed Action: Regain compatibility required by federal law and North Carolina's 1964 
agreement with the US Nuclear Regulatory Commission. The US Nuclear Regulatory Commission has withheld 
a finding of compatibility pending required adoption of these rules. Rule .1625 addresses concerns of the 
medical licensees. 

i^omment Procedures: Written comments may be submitted to the Division of Radiation Protection, Mr. 
Richard M. Fry, P.O. Box 27687, Raleigh, NC 27611-7687. Written comments will be received until October 
20, 1994. 

ilidUor's Note; These Rules were filed as temporary rules effective August 20, 1994 for a period of 180 
days or until the permanent rules become effective, whichever is sooner. 



678 9:10 NORTH CAROLINA REGISTER August 15, 1994 



PROPOSED RULES 



CHAPTER 11 - RADIATION PROTECTION 
SECTION .0100 - GENERAL PROVISIONS 

.0104 DEFINITIONS 

As used in these Rules, the following definitions shall apply. 

(1) "Absorbed dose" means the energy imparted by ionizing radiation per unit mass of irradiated 
material. The units of absorbed dose are the rad and the gray (Gy). 

(2) "Accelerator produced material" means any material made radioactive by use of a particle 
accelerator. 

(3) "Act" means North Carolina Radiation Protection Act as defined in G.S. 104E-1. 

(4) "Activity" is the rate of disintegration (transformation) or decay of radioactive material. The units 
of activity are the curie (Ci) and the becquerel (Bq). 

(5) "Adult" means an individual 18 or more years of age. 

(6) "Agency" means the North Carolina Department of Environment, Health, and Natural Resources. 

(7) "Agreement state" means any state with which the United States Nuclear Regulatory Commission 
has entered into an effective agreement under Subsection 274b. of the Atomic Energy Act of 1954, 
as amended (73 Stat. 689). 

(8) "Airborne radioactive material" means any radioactive material dispersed in the air in the form of 
dusts, fumes, particulates, mists, vapors, or gases. 

(9) "Airborne radioactivity area" means a room, enclosure, or area in which airborne radioactive 
materials, composed wholly or partly of licensed radioactive material, exist in concentrations: 

(a) in excess of the derived air concentrations (DACs) specified in Appendix B to 10 CFR §§ 20.1001 
-20.2401, or 

(b) to such a degree that an individual present in the area without respiratory protective equipment 
could exceed, during the hours an individual is present in a week, an intake of 0.6 percent of the 
annual limit on intake (ALI) or 12 DAC -hours. 

(10) "ALARA" (acronym for "as low as is reasonably achievable") means making every reasonable effort 
to maintain exposures to radiation as far below the dose limits in the rules of this Chapter as is 
practical consistent with the purpose for which the licensed or registered activity is undertaken, 
taking into account the state of technology, the economics of improvements in relation to benefits 
to the public health and safety, and other societal and socioeconomic considerations, and in relation 
to utilization of sources of radiation in the public interest. 

(11) "Annual limit on intake" (ALI) means the derived limit for the amount of radioactive material taken 
into the body of an adult worker by inhalation or ingestion in a year. ALI is the smaller value of 
intake of a given radionuclide in a year by the reference man that would result in a committed 
effective dose equivalent of five rems (0.05 Sv) or a committed dose equivalent of 50 rems (0.5 Sv) 
to any individual organ or tissue. (ALI values for intake by ingestion and by inhalation of selected 
radionuclides are given in Table 1, Columns 1 and 2, of Appendix B to 10 CFR §§ 20.1001 - 
20.2401). 

(12) "Annually" means at intervals not to exceed 12 consecutive months. 

(13) "Authorized representative" means an employee of the agency, or an individual outside the agency 
when the individual is specifically so designated by the agency under Rule .0112 of this Section. 

(14) "Authorized user" means an individual who is authorized by license or registration condition to use 
a source of radiation. 

(15) f44) "Background radiation" means radiation from cosmic sources; naturally occurring radioactive 
materials, including radon (except as a decay product of source or special nuclear material); and 
global fallout as it exists in the environment from the testing of nuclear explosive devices. 
"Background radiation" does not include sources of radiation regulated by the agency. 

(16) {+§) "Becquerel" is the SI unit of radioactivity. One becquerel is equal to one disintegration per 
second (s" 1 ). 

(17) (+6) "Bioassay" or "radiobioassay" means the determination of kinds, quantities or concentrations, 
and, in some cases, the locations of radioactive material in the human body, whether by direct 
measurement (in vivo counting) or by analysis and evaluation of materials excreted or removed from 
the human body. 



NORTH CAROLINA REGISTER August 15, 1994 679 



PROPOSED RULES 



(18) (4-7) "Byproduct material" means any radioactive material, except special nuclear material, yielded 
in or made radioactive by exposure to the radiation incident to the process of producing or utilizing 
special nuclear material. 

(19) (+g) "Class", "lung class" or "inhalation class" means a classification scheme for inhaled material 
according to its rate of clearance from the pulmonary region of the lung. Materials are classified 
as D, W, or Y, which applies to a range of clearance half-times as follows: 

CLASSIFICATION OF INHALED MATERIAL 

Class Clearance half-time 

Class D (Day) less than 10 days 

Class W (Weeks) 10 days to 100 days 

Class Y (Years) greater than 100 days 

(20) (49) "Collective dose" is the sum of the individual doses received in a given period of time by a 
specified population from exposure to a specified source of radiation. 

(21) {30) "Commission" means the North Carolina Radiation Protection Commission. 

(22) (3+) "Committed dose equivalent" (H T50 ) means the dose equivalent to organs or tissues of reference 
(T) that will be received from an intake of radioactive material by an individual during the 50-year 
period following the intake. 

(23) (33) "Committed effective dose equivalent" (H^) is the sum of the products of the weighting factors 
applicable to each of the body organs or tissues that are irradiated and the committed dose equivalent 
to these organs or tissues (He » =E w T H T50 ). 

(24) (33) "Controlled area" means an area, outside of a restricted area but inside the site boundary, access 
to which can be limited by the licensee or registrant for any reason. 

(25) (34) "Curie" is the special unit of radioactivity. One curie is equal to 3.7 x 10 10 disintegrations per 
second = 3.7 x 10 10 becquerels = 2.22 x 10' 2 disintegrations per minute. 

(26) (35) "Declared pregnant woman" means a woman who has voluntarily informed her employer, in 
writing, of her pregnancy and the estimated date of conception. 

(27) (36) "Decommission" means to remove (as a facility) safely from service and reduce residual 
radioactivity to a level that permits release of the property for unrestricted use and termination of 
the license. 

(28) (37) "Deep-dose equivalent" (FLJ, which applies to external whole-body exposure, is the dose 
equivalent at a tissue depth of one cm (1000 mg/cm 2 ). 

(29) (38) "Department" means the North Carolina Department of Environment, Health, and Natural 
Resources. 

(30) (39) "Depleted uranium" means the source material uranium in which the isotope uranium-235 is less 
than 0.711 weight percent of the total uranium present. Depleted uranium does not include special 
nuclear material. 

(31) (30) "Derived air concentration" (DAC) means the concentration of a given radionuclide in air 
which, if breathed by the reference man for a working year of 2,000 hours under conditions of light 
work (inhalation rate 1 .2 cubic meters of air per hour), results in an intake of ALL DAC values are 
given in Table 1, Column 3, of Appendix B to 10 CFR §§ 20.1001 - 20.2041). 

(32) (34) "Derived air concentration-hour" (DAC-hour) is the product of the concentration of radioactive 
material in air (expressed as a fraction or multiple of the derived air concentration for each 
radionuclide) and the time of exposure to that radionuclide, in hours. A licensee may take 2,000 
DAC-hours to represent one ALI, equivalent to a committed effective dose equivalent of five rems 
(0.05 Sv). 

(33) "Diagnostic clinical procedures manual" means a collection of written procedures governing the use 
of radioactive material that describes each method by which the licensee performs diagnostic clinical 
procedures and includes other instructions and precautions; where prior to inclusion in the manual, 
each diagnostic clinical procedure including but not limited in content to the radiopharmaceutical, 
dosage and route of administration, shall be a pproved by the authorized user and the radiation safety 
officer. 

(34) (£3) "Dose" (or radiation dose) is a generic term that means absorbed dose, dose equivalent, effective 



680 9:10 NORTH CAROLINA REGISTER August 15, 1994 



PROPOSED RULES 



dose equivalent, committed dose equivalent, effective dose equivalent, or total effective dose 
equivalent, as defined in other Items of this Rule. 

(35) {33) "Dose equivalent" (H T ) means the product of the absorbed dose in tissue, quality factor, and all 
other necessary modifying factors at the location of interest. The units of dose equivalent are the 
rem and sievert (Sv). 

(36) {34) "Dose limits" (see "Limits" defined in this Rule). 

(37) {35) "Dosimetry processor" means an individual or an organization that processes and evaluates 
individual monitoring equipment in order to determine the radiation dose delivered to the equipment. 

(38) {36) "Effective dose equivalent" (Hg) is the sum of the products of the dose equivalent to the organ 
or tissue (H T ) and the weighting factors (w T ) applicable to each of the body organs or tissues that are 
irradiated (H E = Ew T H T ). 

(39) {37) "Embryo/fetus" means the developing human organism from conception until the time of birth. 

(40) {38) "Entrance or access point" means any location through which an individual could gain access 
to radiation areas or to a source of radiation. This includes entry or exit portals of sufficient size 
to permit human entry, irrespective of their intended use. 

(41) {39) "Equipment services" means the selling, installation, rebuilding, conversion, repair, inspection, 
testing, survey or calibration of equipment which can affect compliance with these Rules by a 
licensee or registrant. 

(42) {40) "Exposure" means being exposed to ionizing radiation or to radioactive material. 

(43) {44) "Exposure rate" means the exposure per unit of time, such as R/min and mR/h. 

(44) {43) "External dose" means that portion of the dose equivalent received from radiation sources 
outside the body. 

(45) ( 4 3) "Extremities" "Extremity" means that portion of the do s e equivalent received from radiation 
sources outside the body hand, elbow, arm, arm below the elbow, foot, knee, or leg below the knee . 

(46) {44) "Eye dose equivalent" applies to the external exposure of the lens of the eye and is taken as the 
dose equivalent at a tissue depth of 0.3 centimeter (300 mg/cm 2 ). 

(47) {45) "Generally applicable environmental radiation standards" means standards issued by the U.S. 
Environmental Protection Agency (EPA) under the authority of the Atomic Energy Act of 1954 (42 
U.S.C. 2D11 et seq;), as amended, that impose limits on radiation exposures or levels, or 
concentrations or quantities of radioactive material, in the general environment outside the boundaries 
of locations under the control of persons possessing or using sources of radiation. 

(48) {46) "Gray" (Gy) is the SI unit of absorbed dose. One gray is equal to an absorbed dose of one 
joule/kilogram (100 rads). 

(49) {4?) "High radiation area" means an area, accessible to individuals, in which radiation levels could 
result in an individual receiving a dose equivalent in excess of 0.1 rem (1 mSv) in one hour at 30 
centimeters from the radiation source or from any surface that the radiation penetrates. 

(50) {48) "Hospital" means a facility that provides as its primary functions diagnostic services and 
intensive medical and nursing care in the treatment of acute stages of illness. 

(51) {49) "Human use" means the internal or external administration of radiation or radioactive materials 
to human beings. 

(52) {§0) "Individual" means any human being. 

(53) {54) "Individual monitoring" means: 

(a) the assessment of dose equivalent by the use of devices designed to be worn by an individual; 

(b) the assessment of committed effective dose equivalent by bioassay (see Bioassay) or by 
determination of the time- weighted air concentrations to which an individual has been exposed, i.e., 
DAC-hours; or 

(c) the assessment of dose equivalent by the use of survey data. 

(54) {52) "Individual monitoring devices" or "individual monitoring equipment" means devices designed 
to be worn by a single individual for the assessment of dose equivalent such as film badges, 
thermoluminescent dosimeters (TLDs), pocket ionization chambers, and personal ("lapel") air 
sampling devices. 

(55) {§3) "Inhalation class" (see "Class" defined in this Rule). 

(56) {54) "Inspection" means an official examination or observation to determine compliance with rules, 
orders, requirements and conditions of the agency or the Commission. 

(57) {55) "Internal dose" means that portion of the dose equivalent received from radioactive material 



9:10 NORTH CAROLINA REGISTER August 15, 1994 681 



PROPOSED RULES 



taken into the body. 

(58) (§6) "License", except where otherwise specified, means a license issued pursuant to Section .0300 
of this Chapter. 

(59) (57) "Licensee" means any person who is licensed by the agency pursuant to Section .0300 of this 
Chapter. 

(60) (58) "Licensing state" means any state designated as such by the Conference of Radiation Control 
Program Directors, Inc. Unless the context clearly indicates otherwise, use of the term Agreement 
State in this Chapter shall be deemed to include licensing state with respect to naturally occurring 
and accelerator produced radioactive material (NARM). 

(61) (59) "Limits" or "dose limits" means the permissible upper bounds of radiation doses. 

(62) (60) "Lost or missing licensed radioactive material" means licensed radioactive material whose 
location is unknown. It includes material that has been shipped but has not reached its destination 
and whose location cannot be readily traced in the transportation system. 

(63) (64) "Lung class" (see "Class" as defined in this Rule). 

(64) (63) "Member of the public" means an individual in a controlled or unrestricted area; however, an 
individual is not a member of the public during any period in which the individual receives an 
occupational dose. 

(65) (63) "Minor" means an individual less than 18 years of age. 

(66) (64) "Misadministration" means the administration of the following : 

(a) q radiopharmaceutical or source of radiation other than the one intended; 

(b) a radiopharmaceutical or radiation to the wrong pati e nt; 

(e) a radiopharmaceutical or radiation by a route of admini s tration other than that intended by the 

prescribing phy s ician; 
(d) a diagno s tic do s age of a radiopharmaceutical or Bourcc of radiation differing from the proscribed 

dosage by more than 50 percent; 
(e) a therapy do s age of a radiopharmaceutical differing from the proscribed dosage by more than ten 

percent; or 
(f) a therapy radiation dose from a source of radiation s uch that errors in the source calibration, time 

of expo s ure, or treatment geometry result in a calculated total treatment dose differing from the 

final proscribed total treatment dose by more than ten percent. 

(a) a diagnostic radiopharmaceutical dosage: 

{]} involving a dose to the patient that exceeds 5 rems effective dose equivalent or 50 rems dose 
equivalent to any individual organ; and 

(A) the wrong patient; 

(B) the wrong radiopharmaceutical ; 

(C) the wrong route of administration: or 

(D) an administered dosage that differs from the prescribed dosage: or 
(ii) for sodium iodide 1-125 or 1-131 involving: 

(A) the wrong patient or wrong radiopharmaceutical; or 

(B) an administered dosage that differs from the prescribed dosage by more than 20 percent of 
the prescribed dosage and the difference between the administered dosage and prescribed 
dosage exceeds 30 microcuries; 

(b) a therapeutic radiopharmaceutical dosage: 
£i) involving: 

(A) the wrong patient; 

(B) wrong radiopharmaceutical; 

(C) wrong route of administration; or 

(D) when the administered dosage differs from the prescribed dosage by more than 20 percent of 
the prescribed dosage; or 

(ii) when the administered dosage of sodium iodide 1-125 or 1-131 differs from the prescribed dosage 
by more than 20 percent of the prescribed dosage and the difference between the administered 
dosage and prescribed dosage exceeds 30 microcuries; 

(c) a teletherapy or accelerator radiation dose: 
(i) involving: 

(A) the wrong patient; 



682 9:10 NORTH CAROLINA REGISTER August 15, 1994 



PROPOSED RULES 



(B) the wrong mode of treatment; or 

(C) wrong treatment site; 

(jj) when the treatment consists of three or fewer fractions and the calculated total administered dose 
differs from the total prescribed dose by more than K) percent of the total prescribed dose; 

(ijj) when the calculated weekly administered dose is 30 percent greater than the weekly prescribed 
dose; or 

(}v) when the calculated total administered dose differs from the total prescribed dose by more than 
20 percent of the total prescribed dose; 

(d) a brachvtherapy radiation dose: 
£i) involving: 

(A) the wrong patient; 

(B) the wrong radioisotope; or 

(C) the wrong treatment site. This excludes, for permanent implants, seeds that were implanted 
in the correct site but migrated outside the treatment site; 

(ii) involving a sealed source that is leaking; 

£iii) when, for a temporary implant, one or more sealed sources are not removed upon completion of 

the procedure; or 
(iv) when the calculated administered dose differs from the prescribed dose by more than 20 percent 

of the prescribed dose; or 

(e) a gamma stereotactic radiosurgery radiation dose: 

£i) involving the wrong patient or wrong treatment site; or 

(ii) when the calculated total administered dose differs from the total prescribed dose by more than 
10 percent of the total prescribed dose. 

(67) (65) "Mobile nuclear medicine service" means the transportation and medical use of radioactive 
material. 

(68) {66) "Monitoring", "radiation monitoring" or "radiation protection monitoring" means the 
measurement of radiation levels, concentrations, surface area concentrations or quantities of 
radioactive material and the use of the results of these measurements to evaluate potential exposures 
and doses. 

(69) {67} "Natural radioactivity" means radioactivity of naturally occurring nuclides. 

(70) (68) "Nonstochastic effect" means health effects, the severity of which varies with the dose and for 
which a threshold is believed to exist. Radiation-induced cataract formation is an example of a 
nonstochastic effect (also called a deterministic effect). 

(71) (69) "NRC" means the United States Nuclear Regulatory Commission or its duly authorized 
representatives. 

(72) (70) "Occupational dose" means the dose received by an individual in a restricted area or in the 
course of employment in which the individual's assigned duties involve exposure to radiation or 
licensed radioactive material, whether in the possession of the licensee or registrant or other person. 
Occupational dose does not include dose received from background radiation, as a patient from 
medical practices, from voluntary participation in medical research programs, or as a member of the 
general public. 

(73) (74) "Particle accelerator" means any machine capable of accelerating electrons, protons, deuterons, 
or other charged particles. 

(74) (73) "Person" means any individual, corporation, partnership, firm, association, trust, estate, public 
or private institution, group, agency, political subdivision of this state, any other state or political 
subdivision or agency thereof, and any legal successor, representative, agent or agency of these 
entities. 

(75) (73) "Personnel monitoring equipment" means devices, such as film badges, pocket dosimeters, and 
thermoluminescent dosimeters, designed to be worn or carried by an individual for the purpose of 
estimating the dose received by the individual. 

(76) (74) "Pharmacist" means an individual licensed by this state to compound and dispense drugs, 
prescriptions and poisons. 

(77) (75) "Physician" means an individual currently licensed to practice medicine in this state. 

(78) (76) "Planned special exposure" means an infrequent exposure to radiation, separate from and in 
addition to the annual dose limits. 



9:10 NORTH CAROLINA REGISTER August 15, 1994 683 



PROPOSED RULES 



(79) "Prescribed dosage" means the quantity of radiopharmaceutical activity: 

(a) as documented in a written directive by an authorized user: and 

(b) that has been prescribed in accordance with the information contained in the diagnostic clinical 
procedures manual. 

(80) "Prescribed dose" means: 

(a) for teletherapy or accelerator radiation: 
(i) the total dose; and 

(jj) the dose per fraction as documented in the written directive; 

(b) for brachvtherapy: 

£i) the total source strength and exposure time: or 

(ii) the total dose, as documented in the written directive; or 

(c) for gamma stereotactic radiosurgery, the total dose as documented in the written directive. 

(81) (27) "Public dose" means the dose received by a member of the public from exposure to radiation 
and to radioactive material released by a licensee or registrant, or to another source of radiation 
either within a licensee's or registrant's controlled area or in unrestricted areas. It does not include 
occupational dose or doses received from background radiation, as a patient from medical practices, 
or from voluntary participation in medical research programs. 

(82) (38) "Quality factor" (Q) means the modifying factor that is used to derive dose equivalent from 
absorbed dose. Quality factors are provided in the definition of rem in this Rule. 

(83) (79) "Quarter" means a period of time equal to one-fourth of the year observed by the licensee or 
registrant (approximately 13 consecutive weeks), providing that the beginning of the first quarter in 
a year coincides with the starting date of the year and that no day is omitted or duplicated in 
consecutive quarters. 

(84) {8©) "Rad" is the special unit of absorbed dose. One rad is equal to an absorbed dose of 100 
ergs/gram or 0.01 joule/kilogram (0.01 gray). 

(85) (84) "Radiation" (ionizing radiation), except as otherwise defined in Section .1400 of this Chapter, 
means alpha particles, beta particles, gamma rays, x-rays, neutrons, high-speed electrons, high-speed 
protons, and other particles capable of producing ions. 

(86) (83) "Radiation area" means an area, accessible to individuals, in which radiation levels could result 
in an individual receiving a dose equivalent in excess of 0.005 rem (0.05 mSv) in one hour at 30 
centimeters from the radiation source or from any surface that the radiation penetrates. 

(87) (84) "Radiation dose" means dose. 

(88) (84) "Radiation machine" means any device capable of producing radiation except devices which 
produce radiation only from radioactive material. 

(89) (85) "Radiation safety officer" means one who has the knowledge and responsibility to apply 
appropriate radiation protection rules. 

(90) {86) "Radioactive material" means any material, solid, liquid, or gas, which emits radiation 
spontaneously. 

(91) (82) "Radioactive waste disposal facility" means any low-level radioactive waste disposal facility, 
as defined in G.S. 104E-5(9c), established for the purpose of receiving low-level radioactive waste, 
as defined in Rule .1202 of this Chapter, generated by another licensee for the purpose of disposal. 

(92) (8&) "Radioactive waste processing facility" means any low-level radioactive waste facility, as 
defined in G.S. 104E-5(9b), established for the purpose of receiving waste, as defined in this Rule, 
generated by another licensee to be stored, compacted, incinerated or treated. 

(93) (89) "Radioactivity" means the disintegration of unstable atomic nuclei by emission of radiation. 

(94) (90) "Radiobioassay" means bioassay. 

(95) "Recordable event" means the administration of the following: 

(a) a radiopharmaceutical or radiation from a licensed source without a written directive; 

(b) a radiopharmaceutical or radiation from a licensed source without recording each administered 
radiopharmaceutical dosage or radiation dose in the appropriate record on a daily basis; 

(c) a diagnostic radiopharmaceutical dosage when: 

£i) the administered dosage differs from the prescribed dosage by more than 10 percent of the 

prescribed dosage; and 
(ii) the difference between the administered dosage and prescribed dose exceeds 15 microcuries; 

(d) a therapeutic radiopharmaceutical dosage when the administered dosage differs from the prescribed 



684 9:10 NORTH CAROLINA REGISTER August 15, 1994 



PROPOSED RULES 



(Si 

ffl 
(96) 

(97) 

(98) 
(99) 

(100) 



dosage by more than 10 percent of the prescribed dosage; 

a teletherapy or accelerator radiation dose when the calculated weekly administered dose is 15. 

percent greater than the weekly prescribed dose: or 

a brachytherapy radiation dose when the calculated administered dose differs from the prescribed 

dose by more than 10 percent of the prescribed dose. 
{94} "Reference man" means a hypothetical aggregation of human physical and physiological 
characteristics arrived at by international consensus as published by the International Commission 
on Radiological Protection. These characteristics may be used by researchers and public health 
workers to standardize results of experiments and to relate biological insult to a common base. 
<93) "Registrant" means any person who is registered with the agency as required by provisions of 
these Rules or the Act. 

(93) "Registration" means registration with the agency in accordance with these Rules. 
{94) "Regulations of the U.S. Department of Transportation" means the regulations in 49 CFR Parts 
100-189. 

{95) "Rem" is the special unit of any of the quantities expressed as dose equivalent. The dose 
equivalent in rems is equal to the absorbed dose in rads multiplied by the quality factor (1 rem = 
0.01 sievert). As used in this Chapter, the quality factors for converting absorbed dose to dose 
equivalent are as follows: 



TYPE OF RADIATION 



QUALITY FACTORS AND ABSORBED DOSE EQUIVALENCIES 
Quality Factor 



Absorbed 

Dose Equal 

to a Unit 



Dose Equivalent* 



X-, gamma, or beta radiation 

Alpha particles, multiple-charged 
particles, fission fragments 
and heavy particles of unknown 
charge 

Neutrons of unknown energy 

High-energy protons 



20 
10 
10 



0.05 

0.1 

0.1 



"Absorbed dose in rad equal to one rem or the absorbed dose in gray equal to one sievert. 

If it is more convenient to measure the neutron fluence rate than to determine the neutron dose equivalent rate 
in rems per hour or sieverts per hour, one rem (0.01 Sv) of neutron radiation of unknown energies may, for 
purposes of the rules of this Chapter, be assumed to result from a total fluence of 25 million neutrons per 
square centimeter incident upon the body. If sufficient information exists to estimate the approximate energy 
distribution of the neutrons, the licensee or registrant may use the fluence rate per unit dose equivalent or the 
appropriate Q value from the following table to convert a measured tissue dose in rads to dose equivalent in 
rems: 



(thermal) 



MEAN QUALITY FACTORS. Q, AND FLUENCE PER UNIT DOSE 
EQUIVALENT FOR MONOENERGETIC NEUTRONS 



Neutron 
Energy 

(MeV) 



2.5 x 10 8 
1 x lO" 7 
1 x lO* 
1 x 10" 5 



Quality 

Factor* 

iQl 

2 
2 
2 
2 



Fluence per Unit 

Dose Equivalent b 

(neutrons cm" 2 rem"') 

980 x 10* 
980 x 10 6 
810 x 10* 
810 x 10* 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



685 



PROPOSED RULES 



1 


x 10^ 


1 


x 10 3 


1 


x 10" 2 


1 


x 10 ' 


5 


x 10 ' 




1 




2.5 




5 




7 




10 




14 




20 




40 




60 


1 


x 10 2 


2 


x 10 2 


3 


x 10 2 


4 


x 10 2 



2 840 x 10* 

2 980 x 10* 

2.5 1010 x 10* 

7.5 170 x 10* 

11 39 x10 s 

11 27x10* 

9 29 x 10* 

8 23 x 10* 

7 24 x 10* 
6.5 24 x 10* 
7.5 17 x 10* 

8 16x10* 
7 14x10* 
5.5 16x10* 
4 20 x 10* 
3.5 19x10* 
3.5 16x10* 
3.5 14x10* 

' Value of quality factor (Q) at the point where the dose equivalent is maximum in a 30-cm diameter cylinder 

tissue-equivalent phantom. 

b Monoenergetic neutrons incident normally on a 30-cm diameter cylinder tissue-equivalent phantom. 

(101) {96) "Research and development" means: 

(a) theoretical analysis, exploration, or experimentation; or 

(b) the extension of investigative findings and theories of a scientific or technical nature into practical 
application for experimental and demonstration purposes, including the experimental production 
and testing of models, devices, equipment, materials, and processes. 

Research and development does not include the internal or external administration of radiation or 
radioactive material to human beings. 

(102) (9?) "Respiratory protective device" means an apparatus, such as a respirator, used to reduce the 
individual's intake of airborne radioactive materials. 

(103) {98} "Restricted area" means an area, access to which is controlled by the licensee or registrant for 
purposes of protecting individuals against undue risks from exposure to radiation and radioactive 
materials. Restricted area does not include areas used as residential quarters, but separate rooms in 
a residential building may be set apart as a restricted area. 

(104) {99) "Roentgen" (R) means the special unit of exposure. One roentgen equals 2.58 x 10 4 
coulombs/kilogram of air. 

(105) (100) "Sanitary sewerage" means a system of public sewers for carrying off waste water and refuse, 
but excluding sewage treatment facilities, septic tanks, and leach fields owned or operated by the 
licensee. 

(106) (101) "Sealed source" means radioactive material that is permanently bonded, fixed or encapsulated 
so as to prevent release and dispersal of the radioactive material under the most severe conditions 
which are likely to be encountered in normal use and handling. 

(107) (102) "Shallow-dose equivalent" (HJ, which applies to the external exposure of the skin or an 
extremity, is taken as the dose equivalent at a tissue depth of 0.007 centimeter (7 mg/cm 2 ) averaged 
over an area of one square centimeter. 

(108) (103) "SI unit" means a unit of measure from the International System of Units as established by the 
Genera] Conference of Weights and Measures. 

(109) (10 4 ) "Sievert" is the SI unit of any of the quantities expressed as dose equivalent. The dose 
equivalent in sieverts is equal to the absorbed dose in grays multiplied by the quality factor (1 Sv 
= 100 rems). 

(110) (105) "Site boundary" means that line beyond which the land or property is not owned, leased, or 
otherwise controlled by the licensee or registrant. 

(111) <4G6) "Source material" means: 



686 9:10 NORTH CAROLINA REGISTER August 15, 1994 



PROPOSED RULES 



(a) uranium or thorium or any combination of uranium and thorium in any physical or chemical form; 
or 

(b) ores which contain, by weight, 0.05 percent or more of uranium, thorium, or any combination 
thereof. Source material does not include special nuclear material. 

(112) (107) "Source of radiation" means any radioactive material, or any device or equipment emitting or 
capable of producing radiation. 

(113) (10 8 ) "Special form radioactive material" means radioactive material which satisfies the following 
conditions: 

(a) It is either a single solid piece or is contained in a sealed capsule that can be opened only by 
destroying the capsule; 

(b) The piece or capsule has at least one dimension not less than five millimeters (0.197 inch); and 

(c) It satisfies the test requirements specified by the U.S. Nuclear Regulatory Commission, Subpart 
F of 10 CFR Part 71, and the tests prescribed in Rule .0114 of this Section. A special form 
encapsulation designed in accordance with the U.S. Nuclear Regulatory Commission requirements, 
Subpart F of 10 CFR Part 71, in effect on June 30, 1984, and constructed prior to July 1, 1985, 
may continue to be used. A special form encapsulation either designed or constructed after June 
30, 1985, must meet requirements of this definition applicable at the time of its design or 
construction. 

(114) (109) "Special nuclear material" means: 

(a) plutonium, uranium-233, uranium enriched in the isotope 233 or in the isotope 235, and any other 
material that the United States Nuclear Regulatory Commission, pursuant to the provisions of 
Section 51 of the Atomic Energy Act of 1954 (42 U.S.C. 2D11 et seq;), determines to be special 
nuclear material, but does not include source material; or 

(b) any material artificially enriched by any of the foregoing but does not include source material. 

(115) (110) "Special nuclear material in quantities not sufficient to form a critical mass" means uranium 
enriched in the isotope uranium-235 in quantities not exceeding 350 grams of contained uranium-235; 
uranium-233 in quantities not exceeding 200 grams; plutonium in quantities not exceeding 200 
grams; or any combination of uranium-235, uranium enriched in uranium-235 and plutonium in 
accordance with the following formula: For each kind of special nuclear material, determine the 
ratio between the quantity of that special nuclear material and the quantity specified in this Rule for 
the same kind of special nuclear material. The sum of these ratios for all the kinds of special nuclear 
material in combination shall not exceed unity. For example, the following quantities in combination 
would not exceed the limitations and are within the formula, as follows: 

175 (gram contained U-235) + 5_0 (grams U-233) + 50 (grams Pu) is < or = 1 
350 200 200 

(116) (444} "State" means the State of North Carolina. 

(117) (112) "Stochastic effects" means health effects that occur randomly and for which the probability of 
the effect occurring, rather than its severity, is assumed to be a linear function of dose without 
threshold. Hereditary effects and cancer incidence are examples of stochastic effects. 

(118) (113) "Survey" means an evaluation of the radiological conditions and potential hazards incident to 
the production, use, transfer, release, disposal, or presence of sources of radiation. When 
appropriate, such an evaluation includes a physical survey of the location of sources of radiation and 
measurements or calculations of levels of radiation, or concentrations or quantities of radioactive 
material present. 

(1191 (i44) "These Rules" means Chapter 1 1 of this Title. 

(120) (115) "Total effective dose equivalent" (TEDE) means the sum of the deep-dose equivalent (for 
external exposures) and the committed effective dose equivalent (for internal exposures). 

(121) (116) "Toxic or hazardous constituent of the waste" means the nonradioactive content of waste 
which, notwithstanding the radioactive content, would be classified as "hazardous waste" as defined 
in 15A NCAC 13A .0002(a). 

H22) (117) "Type A quantity" means a quantity of radioactive material, the aggregate radioactivity of 
which does not exceed A, for special form radioactive material or \ for normal form radioactive 
material, where A, and A 2 are given in Rule .0113 of this Section or may be determined by 



NORTH CAROLINA REGISTER August 15, 1994 687 



PROPOSED RULES 



procedures described in Rule .0113 of this Section. All quantities of radioactive material greater 
than a Type A quantity are Type B. 

(123) (11 8 ) "Unrefined and unprocessed ore" means ore in its natural form prior to any processing, such 
as grinding, roasting, beneficiating, or refining. 

(124) (119) "Unrestricted area" means an area, access to which is neither limited nor controlled by the 
licensee or registrant. 

(125) (120) "Very high radiation area" means an area, accessible to individuals, in which radiation levels 
could result in an individual receiving an absorbed dose in excess of 500 rads (5 grays) in one hour 
at one meter from a radiation source or from any surface that the radiation penetrates. At very high 
doses received at high dose rates, units of absorbed dose (e.g., rads and grays) are appropriate, 
rather than units of dose equivalent (e.g., rems and sieverts). 

(126) (121) "Waste" means low-level radioactive waste as defined in G.S. 104E-5(9a) and includes licensed 
naturally occurring and accelerator produced radioactive material which is not subject to regulation 
by the U.S. Nuclear Regulatory Commission under the Atomic Energy Act of 1954, as amended, 
except as defined differently in Rule .1202 of this Chapter. 

(127) (433) "Waste, Class A" is defined in Rule .1650 of this Chapter. 

(128) (±2-3) "Waste, Class B" is defined in Rule .1650 of this Chapter. 

(129) £±34) "Waste, Class C" is defined in Rule .1650 of this Chapter. 

(130) (125) "Week" means seven consecutive days starting on Sunday. 

(131) <+26) "Weighting factor", w T , for an organ or tissue (T) is the proportion of the risk of stochastic 
effects resulting from irradiation of that organ or tissue to the total risk of stochastic effects when 
the whole body is irradiated uniformly. For calculating the effective dose equivalent, the values of 
w T are: 

ORGAN DOSE WEIGHTING FACTORS 

Organ or 
Tissue w T 

Gonads 0.25 

Breast 0.15 

Red bone marrow 0.12 

Lung 0.12 

Thyroid 0.03 

Bone surfaces 0.03 

Remainder 0.30* 

Whole body 1.00 b 

* 0.30 results from 0.06 for each of 5 "remainder" organs (excluding the skin and the lens of the eye) 
that receive the highest doses. 

b For the purpose of weighting the external whole body dose (for adding it to the internal dose), a 
single weighting factor, w T = 1.0, has been specified. The use of other weighting factors for external 
exposure will be approved on a case-by-case basis until such time as specific guidance is issued. 

(132) (127) "Whole body" means, for purposes of external exposure, head, trunk (including male gonads), 
arms above the elbow, or legs above the knee. 

(133) (12 8 ) "Worker" means an individual engaged in work under a license or registration issued by the 
agency and controlled by a licensee or registrant, but does not include the licensee or registrant. 

(134) (129) "Working level" (WL) is any combination of short-lived radon daughters (for radon-222: 
polonium-218, lead-214, bismuth-214, and polonium-214; and for radon-220: polonium-216, lead- 
212, bismuth-212, and polonium-212) in one liter of air that will result in the ultimate emission of 
1.3 x 10 s MeV of potential alpha particle energy. 

(135) <+3Q) "Working level month" (WLM) means an exposure to one working level for 170 hours. 

(136) "Written directive" means an order in writing for a specific patient, dated and signed by an 



688 9:10 NORTH CAROLINA REGISTER August 15, 1994 



PROPOSED RULES 



authorized user prior to the administration of a radiopharmaceutical or radiation from a licensed 
source, except as specified in Sub-item (e) of this definition, containing the following information: 

(a) for the diagnostic administration of a radiopharmaceutical: 
£i) radiopharmaceutical : 

(ii) proper diagnostic kit; and 
(iii) dosage: 

(b) for the therapeutic administration of a radiopharmaceutical: 
£i) radiopharmaceutical : 

(ii) dosage; and 

(iii) route of administration; 

(c) for teletherapy or accelerator radiation therapy: 
(i) total dose; 

(ii) dose per fraction; 

(iii) treatment site; and 

(iv) overall treatment period; 

(d) for high-dose- rate remote afterloading brachytherapy: 
£i) radioisotope; 

(ii) treatment site; and 
(iii) total dose; 

(e) for all other brachytherapy: 
£i) prior to implantation: 

(A) radioisotope; 

(B) number of sources to be implanted; and 

(C) source strengths in millicuries; and 

(ii) after implantation but prior to completion of the procedure: 

(A) radioisotope; 

(B) treatment site; and 

(C) either: 

(T) total source strength and exposure time: or 
(II) total dose; 

(f) for gamma stereotactic radiosurgery: 
£i} target coordinates; 

(ii) collimator size; 

(iii) plug pattern; and 

(iv) total dose. 
(137) (131) "Year" means the period of time beginning in January used to determine compliance with the 
provisions of Section .1600 of this Chapter. The licensee or registrant may change the starting date 
of the year used to determine compliance by the licensee or registrant provided that the change is 
made at the beginning of the year and that no day is omitted or duplicated in consecutive years. 



Statutory Authority G.S. 104E-7 '(a)(2). 



.0117 INCORPORATION BY REFERENCE 

(a) For the purpose of the rules in this Chapter, 
the following rules, standards and other require- 
ments are hereby incorporated by reference includ- 
ing any subsequent amendments and editions: 

(1) Appendix A, Appendix B and Appendix 
C to 10 CFR Parts 20.1001 - 20.2401; 

(2) 10 CFR Part 31, 10 CFR Part 32, 10 
CFR Part 40 and 10 CFR Part 50; 

(3) 10 CFR Part 61, 10 CFR Part 70, 10 
CFR Part 71, 10 CFR Part 73, 10 CFR 
Part 1 10, 10 CFR Part 140 and 10 CFR 
Part 150; 



(4) 

(5) 
(6) 



(7) 
(8) 
(9) 



21 CFR Part 1010, 21 CFR Part 1020 
and 21 CFR Part 1040; 

39 CFR Part 14 and 39 CFR Part 15; 
Postal Service Manual (Domestic Mail 
Manual) Section 124.3 [incorporated by 
reference in 39 CFR Section 111.11]; 

40 CFR Part 261; 

49 CFR Parts 100-189; 
"Agreement Between the United States 
Atomic Energy Commission and the 
State of North Carolina for Discontinu- 
ance of Certain Commission Regulatory 
Authority and Responsibility within the 



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August 15, 1994 



689 



PROPOSED RULES 



State Pursuant to Section 274 of the 
Atomic Energy Act of 1954, as Amend- 
ed", signed July 21, 1964; 

(10) "Standards and Specifications for Geo- 
detic Control Networks (September 
1984); 

(11) "Geometric Geodetic Survey Accuracy 
Standards and Specifications for Geo- 
detic Surveys Using GPS Relative 
Positioning Techniques"; 

(12) "Reference Man: Anatomical, Physio- 
logical and Metabolic Characteristics" 
(ICRP Publication No. 23) of the Inter- 
national Commission on Radiological 
Protection; and 

(13) "10 CFR, Chapter 1, Commission 
Notices, Policy Statements, Agreement 
States, 46 FR 7540"- and 

(14) American National Standard N43.9- 
1991 "Radiological Safety for the De- 
sign and Construction of A pparatus for 
Gamma Radiography". 

(b) The rules, standards and other requirements 
incorporated by reference in Paragraph (a) of this 
Rule are available for inspection at the Department 
of Environment, Health, and Natural Resources, 
Division of Radiation Protection at the address 
listed in Rule .0111 of this Section. Except as 
noted in the Subparagraphs of this Paragraph, 
copies of the rules, standards and other require- 
ments incorporated by reference in Paragraph (a) 
of this Rule may be obtained from the Superinten- 
dent of Documents, U.S. Government Printing 
Office, Washington, DC. 20402 at a cost as 
follows: 

(1) Three dollars ($3.00) for the appendix- 
es listed in Subparagraph (a)(1) of this 
Rule, available from the Division of 
Radiation Protection; 

(2) Twenty-five dollars ($25.00) for the 
regulations listed in Subparagraph (a)(2) 
of this Rule in a volume containing 10 
CFR Parts 0-50; 

(3) Eighteen dollars ($18.00) for the regu- 
lations listed in Subparagraph (a)(3) of 
this Rule in a volume containing 10 
CFR Parts 51-199; 

(4) Eighteen dollars ($18.00) for the regu- 
lations listed in Subparagraph (a)(4) of 
this Rule in a volume containing 21 
CFR Parts 800-1299; 

(5) Sixteen dollars ($16.00) for the regula- 
tions listed in Subparagraph (a)(5) of 
this Rule in a volume containing 39 
CFR; 



(6) Thirty-six dollars ($36.00) for the 
manual listed in Subparagraph (a)(6) of 
this Rule; 

(7) Thirty-one dollars ($31.00) for the 
regulations listed in Subparagraph (a)(7) 
of this Rule in a volume containing 40 
CFR Parts 260-299; 

(8) for the regulations listed in Subpara- 
graph (a)(8) of this Rule: 

(A) Twenty-three dollars ($23.00) for a 
volume containing 49 CFR Parts 100- 
177; and 

(B) Seventeen dollars ($17.00) for a 
volume containing 49 CFR Parts 178- 
199. 

(9) One dollar ($ 1 .00) for the agreement in 
Subparagraph (a)(9) of this Rule, avail- 
able from the Division of Radiation 
Protection; 

(10) Two dollars and eighty-five cents 
($2.85) for the standards and 
specifications in Subparagraph (a)(10) 
of this Rule, available from the 
National Geodetic Information Center, 
N/CG174, Rockwall Building, Room 
24, National Geodetic Survey, NOAA, 
Rockville, MD 20852; 

(11) Two dollars and eighty-five cents 
($2.85) for the standards and 
specifications in Subparagraph (a)(ll) 
of this Rule, available from the 
National Geodetic Information Center, 
NCG174, Rockwall Building, Room 
24, National Geodetic Survey, NOAA, 
Rockville, MD 20852; 

(12) One hundred and five dollars ($105.00) 
for the ICRP Publication No. 23 in 
Subparagraph (a) (12) of this Rule, 
available from Pergamon Press, Inc., 
Maxwell House, Fairview Park, 
Elmsford, NY 10523; and 

(13) Two dollars ($2.00) for the document 
in Subparagraph (a) (13) of this Rule, 
available from the Division of Radiation 
Protection-?; and 

(14) Thirty -eight dollars plus five dollars 
shipping and handling ($43.00) for the 
American National Standard N43.9- 
1991 in Subparagraph (a) (14) of this 
Rule, available from the American 
National Standards Institute, Inc.. 1430 
Broadway. New York, New York 
10018. telephone number (212) 642- 
4900. 

(c) Nothing in this incorporation by reference of 



690 



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August 15, 1994 



PROPOSED RULES 



10 CFR Part 61 in Subparagraph (a)(3) of this 
Rule shall limit or affect the continued applicabili- 
ty of G.S. 104E-25(a) and (b). 

Statutory Authority G.S. 104E-7; 104E-15(a); 
150B-21.6. 

SECTION .0300 - LICENSING OF 
RADIOACTIVE MATERIAL 

.0343 TRANSFER OF MATERIAL 

(a) No licensee shall transfer radioactive materi- 
al except as authorized pursuant to this Section. 

(b) Except as otherwise provided in his license 
and subject to the provisions of Paragraphs (c), (d) 
and (e) of this Rule any licensee may transfer 
radioactive material to: 

(1) the agency; 

(2) the U.S. Department of Energy; 

(3) any person exempt from the rules in 
this Section to the extent permitted 
under the exemption; 

(4) any person authorized to receive the 
radioactive material under terms of a 
general license or its equivalent, or a 
specific license or equivalent licensing 
document, issued by the agency, the 
U.S. Nuclear Regulatory Commission, 
or an agreement state, or any person 
otherwise authorized to receive the 
radioactive material by the federal 
government or any agency thereof, the 
agency, or an agreement state; or 

(5) as otherwise authorized by the agency 
in writing. 

(c) A licensee may transfer material to the 
agency only after receiving prior approval from 
the agency. 

(d) Before transferring radioactive material to a 
specific licensee of the agency, the U.S. Nuclear 
Regulatory Commission, or an agreement state, or 
to a general licensee who is required to register 
with the agency, the U.S. Nuclear Regulatory 
Commission, or an agreement state prior to receipt 
of the radioactive material, the licensee transfer- 
ring the material shall verify that the transferee's 
license authorizes the receipt of the type, form, 
and quantity of radioactive material to be trans- 
ferred. 

(e) The following methods for the verification 
required by Paragraph (d) of this Rule are accept- 
able: 

(1) The transferor may have in his posses- 
sion, and read, a current copy of the 
transferee' s transferee's specific li- 



cense or registration certificate; 

(2) The transferor may have in his posses- 
sion a written certificate by the transfer- 
ee that he is authorized by license or 
registration certificate to receive the 
type, form, and quantity of radioactive 
material to be transferred, specifying 
the license or registration certificate 
number, issuing agency, and expiration 
date; 

(3) For emergency shipments the transferor 
may accept oral certification by the 
transferee that he is authorized by 
license or registration certificate to 
receive the type, form, and quantity of 
radioactive material to be transferred, 
specifying the license or registration 
certificate number, issuing agency, and 
expiration date; provided the oral certif- 
ication is confirmed in writing within 
ten days after the date of the oral certif- 
ication; 

(4) The transferor may obtain other sources 
of information compiled by a reporting 
service from official records of the 
agency, the U.S. Nuclear Regulatory 
Commission, or the licensing agency of 
an agreement state as to the identity of 
licensees and the scope and expiration 
dates of licenses and registration; or 

(5) When none of the methods of verifica- 
tion described in this Rule are readily 
available or when a transferor desires to 
verify that information received by one 
of the methods is correct or updated, 
the transferor may obtain and record 
confirmation from the agency, the U.S. 
Nuclear Regulatory Commission, or the 
licensing agency of an agreement state 
that the transferee is licensed to receive 
the radioactive material. 

(f) Preparation for shipment and transport of 
radioactive material shall be in accordance with the 
provisions of Rule .0346 of this Section. 

Statutory Authority G.S. 104E-7; 104E-10(b). 

.0350 RECORDS AND REPORTS OF 
MISADMINISTRATION 

(a) When a miaadministration involve s — any 

therapy procedure, the lioonBoo shall notify the 

agency by telephone. The licensee s hall al s o 

notify — the — referring — physician — of the — affected 
patient and the patient or a respon s ible relative or 
guardian, unices the referring physician agrees to 



9:10 



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August 15, 1994 



691 



PROPOSED RULES 



inform the patient. However, — if the referring 

physician believes, baaed on medical judgment, 
that telling the patient or the patient's responsible 
relative or guardian, would bo harmful to one or 
the other, — re s pectively, — such notification is not 
required. These notifications must be made within 
2 4 hours after the licensee discover s the misadmin 
i s tration. If the referring physician, patient, or the 
patient's responsible relative or guardian cannot be 
reached within 2 4 hours, the licensee shall notify 
them as soon as practicable. — The licensee is not 
required to notify the patient or the patient' s 
responsibl e — relativ e — ©f — guardian — without — first 
consulting the referring physician. — However, the 
licensee shall not delay medical care for the patient 
because of this notification requirement. 

(b) Within — 15 day s after an initial therapy 

misadministration report to the agency, the licens 
cc shall report, in writing, to the agency and to the 
referring physician, — and furnish a copy of the 
report to the patient or the patient' s responsible 
relative — ef — guardian — if either — was — previously 
notified by the licen s ee as required by fttragraph 
(a) of this Rule. — The written report must include: 

i±) the licensee's name; 

(3) referring phy s ician' s name; 

0) a brief description of the event; 

{4} the effect on the patient; 

(£) the action taken to prevent recurrence; 

f6) confirmation that the licen s ee informed 

the patient or the paticnt'3 responsible 
relative or guardian, or documentation 
of the reasons why the patient or the 
patient's responsible relative or guard 
ion was not informed. 
The report must not include the patient's name or 
other information that could lead to identification 
of the patient. 

{e} — When a misadministration involves a diag 
no s tic procedure, the radiation safety officer shall 
promptly investigate its cause, make a record for 
agency review, and retain the record as directed in 
Paragraph (d) of this Rule. The licen s ee s hall al s o 
notify the referring physician and the agency in 
writing on the appropriate form(s) provided by the 
agency within — 15 days if the mi s admini s tration 
involved the use of radioactive material not intend 
ed for medical use, admini s tration of dosage five 
times different than the intended dosage, or admin 
istration — of radioactive — material — such — that — the 
patient is likely to receive an organ do s e greater 
than two rcms or a whole body dose greater than 

500 millirem s . Licensees shall use dosimetry 

tables — m — package — inserts, — corrected — esly — fef 



amount of radioactivity admini s tered, to determine 
whether a report i s r equired. 

(d) — Each licensee shall retain a record of each 
misadministration for ten years. — The record must 
contain: 

$¥) the names of all individuals involved in 

the — event — (including — the — physician, 
allied health personnel, the patient, and 
the patient' s referring physician); 

(3) the patient' s s ocial security number or 

identification number, if one has been 
assigned; 

{3} a brief description of the event; 

(4) the effect on the patient; and 



m- 



the action taken, — i£- 



■etsty; — to prevent 
recurrence. 

(a) As defined in this Rule, "patient" means the 
patient or the patient's responsible relative or 
guardian. 

(b) For a misadministration as defined in Rule 
.0104 of this Chapter: 

(1) The licensee shall notify the agency by 
telephone no later than the next busi- 
ness day after discovery of the 
misadministration. 

(2) Within 15 days after the discovery of 
the misadministration. the licensee shall 
submit a written report to the agency. 
The written report shall include: 

(A) the licensee's name; 

(B) the name of the authorized user that 
issued the written directive; 

(C) a brief description of the event re- 
corded on the agency misadministra- 
tion form; 

£D} the licensee's evaluation of why the 
event occurred: 

(E) any anticipated short and long term 
effects on the patient; 

(F) the licensee's evaluation of improve- 
ments needed to prevent recurrence; 

(G) documentation of the actions taken by 
the licensee to prevent recurrence: 
and 

(H) whether or not the licensee notified 
the patient: and 
(j) if the patient was not notified, the 

reason why not; or 
(ii) if the patient was notified, what 
information was provided. 

(3) The report required in Subparagraph 
(b)(2) of this Rule shall not include the 
patient's name or other information that 
could lead to the identification of the 
patient. 



692 



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PROPOSED RULES 



(4) The licensee shall notify the referring 
physician and the patient of the misad- 
ministration no later than 24 hours after 
its discovery, unless the referring phy- 
sician personally informs the licensee 
either that he will inform the patient or 
that, based on medical judgment, telling 
the patient would be harmful. The 
licensee is not required to notify the 
patient without first consulting the 
referring physician. If the referring 
physician or patient cannot be reached 
within 24 hours, the licensee shall 
notify the patient as soon as possible 
thereafter. The licensee shall not delay 
any appropriate medical care for the 
patient, including any necessary remedi- 
al care as a result of the misadministra- 
tion. because of any delay in notifica- 
tion. 

(5) If the patient was notified, the licensee, 
shall also furnish, within 15 days after 
discovery of the misadministration a 
written report to the patient by sending 
either: 

(A) A copy of the report that was submit- 
ted to the agency; or 

(B) A brief description of both the event 
and the consequences as they may 
affect the patient, provided a state- 
ment is included that the report sub- 
mitted to the agency can be obtained 
from the licensee. 

(c) Each licensee shall retain a record of each 
misadministration for five years. The record shall 
contain: 

(1) the names of all individuals involved 
including the authorized user, allied 
health personnel, the patient, and the 
patient's referring physician: 

(2) the patient's social security number or 
identification number if one has been 
assigned: and 

(3) the information required in Parts 
(b)(2KCHG) of this Rule. 

(d) {e)Aside from the notification requirements, 
nothing in this Rule shall affect the rights or duties 
of licensees, and physicians in relation to each 
other, patients, or the patient's responsible 
relatives or guardians. 

Statutory Authority G.S. 104E-7 (a)(2). 

.0351 SPECIFIC LICENSES: MOBILE 
NUCLEAR MEDICINE SERVICES 



(a) Provided that mobile nuclear medicine 
services shall be limited to clients who do not have 
a specific radioactive material license for the same 
services, unless the client's specific license specifi- 
cally authorizes the use of such mobile services, 
the agency will license a mobile nuclear medicine 
service for the following services: 

(1) uptake, dilution and excretion; 

(2) imaging and localization; 

(3) sealed sources for diagnosis; and 

(4) certain in vitro clinical or laboratory 
testing. 

(b) The mobile nuclear medicine service licensee 
shall: 

(1) obtain a letter signed by the manage- 
ment of each client for which services 
are rendered that authorizes the licensee 
to use radioactive material at the 
client's address of use; 

(2) retain the letter for two years after the 
last provision of service; 

(3) not order radioactive material to be 
delivered directly from the 
manufacturer or distributor to the 
client's address of use; 

(4) transport to each address of use only 
syringes or vials containing prepared 
radiopharmaceuticals or 
radiopharmaceuticals that are intended 
for reconstitution of 
radiopharmaceuticals kits; 

(5) bring into each address of use of all 
radioactive material to be used and 
before leaving, remove all unused 
radioactive material and all associated 
waste; 

(6) secure or keep under constant 
surveillance and immediate control all 
radioactive material when in transit or 
at an address of use; 

(7) check survey instruments, dose 
calibrators and all other transported 
equipment for proper function before 
medical use at each address of use; 

(8) carry a radiation detection survey meter 
in each vehicle that is being used to 
transport radioactive material and, 
before leaving a client address of use, 
survey all radiopharmaceutical areas of 
use with a radiation detection survey 
meter to ensure that all 
radiopharmaceuticals and all associated 
waste have been removed; and 

(9) retain a record of each survey required 
in Subparagraph (b)(8)ffl of this Rule 



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693 



PROPOSED RULES 



(A) 
(B) 
(C) 



(D) 



(E) 



for two years, where such records shall 
include: 

the date of the survey, 

a plan of each area that was surveyed, 

the measured dose rate at several 

points in each area of use expressed 

in millirem per hour, 

the instrument used to make the 

survey; and 

the initials of the individual who 

performed the survey. 



Statutory Authority G.S. 104E-7(a)(2); 104E-10(b). 

.0356 QUALITY MANAGEMENT 
PROGRAM 

(a) Each applicant or licensee for medical use 
under this Section shall establish and maintain a 
written quality management program to provide 
high confidence that radioactive material or radia- 
tion from licensed sources will be administered as 
directed by the authorized user. The quality 
management program shall include written policies 
and procedures to meet the following specific 
objectives: 

(1) that, prior to administration, a written 
directive is prepared for any: 
(A) diagnostic administration of a radio- 
pharmaceutical; 
£B_1 therapeutic administration of a radio- 
pharmaceutical; 
(Q brachytherapy radiation dose; 

(D) teletherapy or accelerator radiation 
dose; or 

(E) gamma stereotactic radiosurgery 



radiation dose; 



£21 



£31 



£41 

£51 



that, prior to each administration, the 
patient's identity is verified by more 
than one method as the individual 
named in the written directive; 
that final plans of treatment and related 
calculations for brachytherapy. telether- 
apy, accelerator treatment and gamma 
stereotactic radiosurgery are in accor- 
dance with written directives; 
that each administration is in accor- 



dance with the written directive; and 
that any unintended deviation from the 
written directive is identified and evalu- 
ated, and appropriate action is taken. 
(b) Notwithstanding the requirements of Sub- 
paragraph (a)(1) of this Rule: 

(1) if, due to the patient's condition, a 
delay in the execution of an existing 
written directive in order to obtain a 



written revision to the existing written 
directive would jeopardize the patient's 
health, an oral revision by an autho- 
rized user to an existing written direc- 
tive shall be acceptable, provided that: 

(A) the oral revision is documented imme- 
diately in the patient's record; and 

(B) a revised written directive is signed 
by the authorized user within 48 
hours of the oral revision: 

£21 a written revision to an existing written 
directive may be made for any diagnos- 
tic or therapeutic procedure provided 
that the revision is dated and signed by 
an authorized user prior to the adminis- 
tration of the radiopharmaceutical dos- 
age, the brachytherapy dose, the gam- 
ma stereotactic radiosurgery dose, the 
teletherapy or accelerator radiation 
dose, or the next teletherapy or acceler- 
ator radiation fractional dose; 

(3) ifj because of the emergent nature of 
the patient's condition, a delay in order 
to acquire a written directive by an 
authorized user would jeopardize the 
patient's health, an oral directive by an 
authorized user shall be acceptable, 
provided that: 

(A) the information contained in the oral 
directive is documented immediately 
in the patient's record; and 

(B) a written directive is prepared and 
signed by the authorized user within 
24 hours of the oral directive. 

(c) The medical use licensee shall: 

(1) develop procedures for and conduct a 
review of the quality management 
program at intervals not to exceed 12 
months to verify compliance, since the 
last review, with all aspects of the 
quality management program including 
an evaluation of: 

(A) a representative sample of patient 
administrations: 

(B) all recordable events: and 

(C) all misadministrations; 

(2) evaluate each of these reviews to deter- 
mine the effectiveness of the quality 
management program and, if required, 
make modifications to meet the objec- 
tives of Paragraph (a) of this Rule; and 

(3) retain records of each review in an 
auditable form, including the evalua- 
tions and findings of the review for 
three years. 



694 



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PROPOSED RULES 



(d) The medical use licensee shall evaluate and 
respond, within 30 days after discovery of a 



recordable event as defined in Rule .0104 of this 






Chapter, to each recordable event by: 

(1) assembling the relevant facts including 
the cause of the event; 
identifying any corrective action re- 
quired to prevent recurrence; and 
retaining a record, in an auditable 
form, for three years, of the informa- 
tion required in Subparagraphs (1) and 
£2} of Paragraph (d). 

(e) The medical use licensee shall retain: 

(1) each written directive; 

(2) a record of each administered radiation 
dose or radiopharmaceutical dosage; 
and 

(3) retaining a record, in an auditable 
form, for three years, of the informa- 
tion required in Subparagraphs (1) and 
(2) of Paragraph (e). 

(f) The medical use licensee is authorized to 
make modifications to the quality management 



program, without prior approval by the agency. 



that do not degrade the program's ability to main- 
tain exposures as low as reasonably achievable- 



Changes to the quality management program shall 



be submitted to the agency for review within 30 
days of the change. 



(g) Each applicant for a new medical use license 
shall submit to the agency a quality management 



implement the program upon issuance of the 



license. 

(h) Each existing medical use licensee shall 
submit to the agency by May J_, 1995 a written 



certification that the quality management program 



las been implemented along with a copy of the 
program. 



program as part of the application for a license and 



Statutory Authority G.S. 104E-7; 104E-10(b). 

0357 REPORTING REQUIREMENTS 

(a) Immediate report. Each licensee shall notify 
he agency as soon as possible but not later than 
four hours after the discovery of an event that 
jrevents immediate protective actions necessary to 



ivoid exposures to sources of radiation that could 



ixceed regulatory limits or releases of licensed 



adioactive material that could exceed regulatory 



imits. These events include but are not limited to 



ires, explosions and toxic gas releases. 
(b) Twenty-four hour report. Each licensee shall 
lotify the agency within 24 hours after the discov- 



Ify of any of the following events involving 



licensed radioactive material: 



in 



an unplanned contamination event that: 

(A) requires access to the contaminated 
area, by workers or the public, to be 
restricted for more than 24 hours by 
imposing additional radiological con- 
trols or by prohibiting entry into the 
area; 

(B) involves a quantity of material greater 
than five times the lowest annual limit 
on intake specified in Appendix B to 
10 CFR££ 20.1001-20.2401 for the 
material: and 

(C) causes the licensee to restrict access 
to the area for a reason other than to 
allow isotopes with a half-life of less 
than 24 hours to decay prior to decon- 
tamination; 

(2) an event in which equipment is disabled 
or fails to function as designed when: 

(A) the equipment is required by rule or 
license condition to: 

(i) prevent releases exceeding regula- 
tory limits; 

(ii) prevent exposures to sources of 
radiation exceeding regulatory 
limits; or 

(iii) to mitigate the consequences of an 
accident; 

(B) the equipment is required to be avail- 
able and operable at the time that it is 
disabled or fails to function; and 

(C) no redundant equipment is available 
and operable to perform the required 
safety function: 

(3) an event that requires unplanned medi- 
cal treatment at a medical facility of an 
individual with removable radioactive 
contamination on the individual's cloth- 
ing or body; or 

(4) an unplanned fire or explosion damag- 
ing any licensed material or any device, 
container or equipment containing 
licensed radioactive material when: 

(A) the quantity of material involved is 
greater than five times the lowest 
annual limit on intake specified in 
A ppendix B to 10 CFR M 20.1001- 
20.2401 for the material: and 

(B) the damage affects the integrity of the 
licensed radioactive material or its 
container. 

(c) Preparation and submission of reports. 
Reports made by licensees in response to the 
requirements of this Rule shall be made as follows: 



110 



NORTH CAROLINA REGISTER 



August 15, 1994 



695 



PROPOSED RULES 



ill 



IS) 

IQ 

ID) 



Licensees shall make reports required 
by Paragraphs (a) and (b) of this Rule 
by telephone as specified in Rule 
.0111(b) of this Chapter. To the extent 
that the information is available at the 
time of notification, the information 
provided in these reports shall include: 
the caller's name and call back 
telephone number; 

a description of the event, including 
date and time; 

the exact location of the event; 
the isotopes, quantities, and chemical 
and physical form of the licensed 
radioactive material involved; and 
any personnel radiation exposure data 
available, 
£2) Each licensee who makes a report 
required by Paragraph (a) or £b) of this 
Rule shall submit a written follow-up 
report within 30 days of the initial 
report. Written reports prepared 
pursuant to other rules may be 
submitted to fulfill this requirement if 
the reports contain all of the necessary 
information and the a ppropriate 
distribution is made. These written 
reports shall be submitted to the agency 
as specified in Rule .0111(a) of this 
Chapter. The reports shall include the 
following: 
a description of the event, including 
the probable cause and the 
manufacturer and model number, if 
applicable, of any equipment that 
failed or malfunctioned; 
the exact location of the event; 
the isotopes, quantities and chemical 
and physical form of the licensed 
material involved: 



(A) 



1Q 



IB) 
IE) 



ID 



or 
any 



the date and time of the event; 
the corrective actions taken 
planned and the result of 
evaluations or assessments; and 
the extent of exposure of individuals 
to sources of radiation without 
identification of individuals by name. 



Statutory Authority G.S. 104E-7(a)(2); 104E-10(b). 

SECTION .0500 - SAFETY 

REQUIREMENTS FOR INDUSTRIAL 

RADIOGRAPHY OPERATIONS 

.0502 DEFINITIONS 



12) 



(a) As used in this Section, the following defini- 
tions shall a pply: 

(1) "Associated equipment" means equip- 
ment used in conjunction with a radio- 
graphic exposure device to make radio- 
graphic exposures that drives, guides or 
comes in contact with the sealed source 
or radiation machines. 
O "Cabinet radiography using radiation 
machines" means industrial radiography 
using radiation machines, which is 
conducted in an enclosed, interlocked 
cabinet, such that the radiation machine 
will not operate unless all openings are 
securely closed, and which cabinet is so 
shielded that every location on the 
exterior meets conditions for an unre- 
stricted area as specified in Rule .1611 
of this Chapter. 

"Collimator" means a device used to 
limit the size, shape, and direction of 
the primary radiation beam. 
"Control device'', commonly called a 
crank-out, means the control cable, the 
protective sheath and control drive 
mechanism used to move the sealed 
source from the shielded position in the 
radiographic device or camera to an 
unshielded position outside the device 
for the purpose of making a radiograph- 
ic exposure. 

"Exposure head", commonly called a 
source stop, means a device that locates 
the gamma radiography sealed source in 
the selected working position. 
"Field examination" means a demon- 



13} 



14) 



15) 



16) 



IH 



18) 



12) 



stration of practical a pplication of prin- 
ciples learned in the classroom that 
shall include use of all appropriate 
equipment and procedures. 
{d) "Industrial radiography" means the 
examination of materials by nondestruc- 
tive methods utilizing sources of radia- 
tion. 

"Periodic training" means a periodic 
review conducted or provided by the 
licensee or registrant for its employees 
on radiation safety aspects of radiogra- 
phy. The review shall include the 
results of internal inspections, new 
procedures or equipment, accidents or 
errors that have been observed, and 
opportunities for employees to ask 
safety questions. 
fk) "Permanent radiographic installa- 



696 



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PROPOSED RULES 



Hon" means a s hielded in s tallation or 
s tructure designed or intended for radi 
ography and an enclosed shielded room, 
cell, or vault in which radiography is 
regularly performed. 

(10) "Projection sheath", commonly called a 
guide tube or "J" tube, means a flexible 
or rigid tube for guiding the source 
assembly and the attached control cable 
from the exposure device to the expo- 
sure head. When the source assembly is 
fully extended to the exposure head, the 
sealed source is in what ]s commonly 
called the working position. 

(11) "Radiation Safety Officer" means an 
individual named by the licensee or 
registrant who has knowledge of, re- 
sponsibility for, and authority to ensure 
compliance with a ppropriate radiation 
protection rules, standards, and practic- 
es on behalf of the licensee or registrant 
and who meets the requirements of 
Rule .0510(g) of this Section. 

(12) (a) "Radiographer" means any individu- 
al who performs or who, in attendance 
at the site where sources of radiation 
are being used, personally supervises 
industrial radiographic operations and 
who is responsible to the licensee or 
registrant for assuring compliance with 
the requirements of these Rules and all 
license or registration conditions. 

(13) {b) "Radiographer's assistant" means 
any individual who, under the personal 
supervision of a radiographer, uses 
sources of radiation, related handling 
tools, or survey instruments in industri- 
al radiography. 

(14) (e) "Radiographic exposure device"^ 
commonly called a camera or projector. 
means any instrument containing a 
sealed source fastened or contained 
therein, in which the sealed source or 
shielding thereof may be moved, or 
otherwise changed, from a shielded to 
unshielded position for purposes of 
making a radiographic exposure. 

(15) fh) "Sealed source" means any radioac- 
tive material that is encased in a cap- 
sule designed to prevent leakage or 
escape of the radioactive material. 

(16) "Shielded position" means the location 
within the radiographic exposure device 
or source changer where the sealed 
source is secured and restricted from 



movement. In this position the radiation 
exposure will be at minimum. This 
position incorporates maximum shield- 
ing for the sealed source. 
{g) — "Shielded room radiography u s ing radiation 
machines" — mean s — industrial — radiography — u s ing 
radiation machines, — which — i s conducted — in an 
enclosed room, the interior of which is not occu 
pied during radiographic operations, which is so 
shielded that every location on the exterior meets 
conditions for an unrestricted area as specified in 
Rule .1611 of thi s Chapter, and the only access to 
which is through opening s which arc interlocked 
so that the radiation machine will not operate 
unless all openings arc securely clo s ed. 

(17) "Source assembly" means an assembly 
that consists of the sealed source and a 
connector. It also includes the stop ball 
if one is used to secure the sealed 
source in the shielded position. The 
connector attaches to the control cable. 

(18) £j) "Source changer" means a device 
designed and used for replacement of 
sealed sources in radiographic exposure 
devices, including those also used for 
transporting and storage of sealed 
sources. 

(19) Q) "Storage area" means any location, 
facility or vehicle which is used to 
stor e, tran s port or secure a radiographic 
exposure device, a storage container or 
a sealed source when it is not in use 
and which is locked or has a physical 
barrier to prevent accidental exposure, 
tampering with or unauthorized removal 
of the device, storage container or 
sealed source. 

(20) {e) "Storage container" means a device 
in which sealed sources are tran s ported 
©f stored. 

(i) "Storage container" means a device in which 
sealed sources arc transported or stored. 

(21) "Temporary jobsite" means a place, 
other than a permanent radiographic 
installation, where sealed sources or 
radiation machines are present for the 
purpose of performing radiography. 

(b) Other definitions a pplicable to this Section 
may be found in Rule .0104 of this Chapter. 

Statutory Authority G.S. 104E-7. 

.0503 EQUIPMENT RADIATION LEVEL 
LIMITS 

(a) Radiographic exposure devices measuring 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



697 



PROPOSED RULES 



less than four inches £10 centimeters) from the 
sealed source storage position to any exterior 
surface of the device shall have no radiation level 
in excess of 50 milliroentgens (0.5 millisieverts) 
per hour at six inches £15 centimeters') from any 
exterior surface of the device. Radiographic 
exposure devices^ source changers and storage 
containers measuring a minimum of four inches 
(10 centimeters) from the sealed source storage 
position to any exterior surface of the device, and 
all storage containers for sealed sources or outer 
containers for radiographic exposure devices, shall 
have no radiation level in excess of 200 
milliroentgens £2 millisieverts) per hour at any 
exterior surface, and ten milliroentgens (0.1 
millisieverts) per hour at one meter from any 
exterior surface. The radiation levels specified are 
with the sealed source in the shielded position. 

(b) After January 10, 1996 all radiographic 
exposure devices and associated equipment other 
than storage containers shall meet the requirements 
of Rule .0521 of this Section. 

Statutory Authority G.S. 104E-7. 

.0504 RADIOGRAPHIC EXPOSURE 
DEVICES AND STORAGE 
CONTAINERS 

(a) Each radiographic exposure device shall have 
a lock or outer locked container designed to 
prevent unauthorized or accidental removal of the 
sealed source from its shielded position. The 
exposure device or its container shall be kept 
locked when not under the direct surveillance of a 
radiographer or a radiographer's assistant or as 
otherwise may be authorized in Rule .0515 of this 
Section. If the exposure device or container is 
secured with a keyed lock, the key shall be re- 
moved at all times when the device or container is 
not being used. In addition, during radiographic 
operations, the sealed source assembly shall be 
manually secured in the shielded position each 
time the sealed source is returned to that position 
in those devices manufactured prior to the effective 
date of this Rule. 



(b) Each sealed source storage container and 
source changer shall have a lock or outer locked 
container designed to prevent unauthorized or 
accidental removal of the sealed source from its 
shielded position. Storage containers and source 
changers shall be kept locked when containing 
sealed sources except when under the direct sur- 
veillance of a radiographer or a radiographer's 
assistant. 

(c) Prior to moving a radiographic exposure 



device, source changer or storage container from 
one temporary iobsite to another, the licensee 
shall: 

(1) perform a survey to ensure that the 
sealed source is in the shielded posi- 
tion; 

(2) disassemble the radiographic exposure 
device, source changer or storage con- 
tainer from associated equipment; 

(3) apply safety plugs or covers; 

(4) lock the radiographic exposure device, 
source changer or storage container: 
and 

(5) physically secure the radiographic 
exposure device, source changer or 
storage container to prevent accidental 
loss, tampering or removal of sealed 
sources. 

Statutory Authority G. S. 104E-7. 

.0505 STORAGE, LABELS AND 
TRANSPORTATION 
PRECAUTIONS 

(a) Security precautions during storage or 
transportation: 

(1) Locked radiographic exposure devices 
and storage containers shall be physical- 
ly secured to prevent tampering or 
removal by unauthorized personnel. 
The licensee shall store sealed sources 
in a manner which will minimize dan- 
ger from explosion or fire. 

(2) The licensee shall lock and physically 
secure the transport package containing 
sealed sources in the transporting vehi- 
cle to prevent accidental loss, tampering 
or unauthorized removal of the sealed 
sources from the vehicle. 

£bl Labels: 

(1) The licensee shall not use a source 
changer or storage container to store 
sealed sources unless the source chang- 
er or the storage container has securely 
attached to it a durable, legible, and 
clearly visible label. The label shall 
contain the radiation symbol specified 
in Rule .1623 of this Chapter and the 
wording: 

CAUTION (OR DANGER) 

RADIOACTIVE MATERIAL- DO NOT HANDLE 

NOTIFY CIVIL AUTHORITIES 

(OR NAME OF COMPANY) 

(2) The licensee shall not transport sealed 
sources unless the material is packaged. 



698 



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NORTH CAROUNA REGISTER 



August 15, 1994 



PROPOSED RULES 



labeled, marked, and accompanied with 
the appropriate shi pping papers jn 
accordance with regulations set out in 
10 CFR Part 71. including documenta- 
tion of the Quality Assurance program 
requirements outlined in 10 CFR 
71.105. 



plished by evaluating the instrument response to 
the previously measured fields at the projection 
sheath port or the control cable sheath port on a 
radiographic exposure device. 

(e) The licensee or registrant shall maintain 
records of the results of the instrument calibrations 
in accordance with Rule .0523 of this Section. 



Statutory Authority G.S. 104E-7. 



Statutory Authority G.S. 104E-7; 104E-12(a)(l). 



.0506 SURVEY INSTRUMENTS 

(a) The licensee or registrant shall maintain 
sufficient calibrated and operable radiation survey 
instruments at each temporary jobsite and at any 
location where sealed sources or radiation 
machines are used or stored to make physical 
radiation surveys as required by this Rule and 
Rules .1613 and .1627 of this Chapter. 

(b) Each radiation survey instrument required by 
Paragraph (a) shall be calibrated! 

(1) at intervals not to exceed three months 
and after each instrument servicing 
except for battery change; and a record 
maintained of the latest date of calibre 

(2) at the following points for each instru- 
ment, as a pplicable: 

(A) linear scale instruments shall be cali- 
brated at two points located a pproxi- 
mately 1/3 and 2/3 of full-scale on 
each scale; 

(B) logarithmic scale instruments shall be 
calibrated at the midrange of each 
decade and at two points in the same 
decade for at least one decade; and 

(C) digital instruments shall be calibrated 
in accordance with procedures ap- 
proved by the agency provided that 
the calibration includes the following 
points: 

2 mR/hr or 0.02 mSv/hr; 
5 mR/hr or 0.05 mSv/hr; 
50 mR/hr or 0.5 mSv/hr; 



Hii) 



500 mR/hr or 5 mSv/hr; and 
1 R/hr or 0.01 Sv/hr; 



{3} 



so that an accuracy within plus or 
minus 20 percent of the calibration 
standard can be demonstrated on each 
scale. 

(c) Instrumentation required by this Rule shall 
have a range such that two milliroentgens (0.02 
millisievertsl per hour through one roentgen (0.01 
sieverf) per hour can be measured. 

(d) Survey instruments shall be checked for 
operabilitv prior to use. This may be accom- 



.0507 LEAK TESTING AND 

REPLACEMENT OF SEALED 
SOURCES 

(a) The replacement of any sealed source fas- 
tened to or contained in a radiographic exposure 
device and leak testing , repair, tagging, opening or 
any other modification of any sealed source shall 
be performed only by persons specifically autho- 
rized by the agency to do so pursuant to the rules 
in this Section. 

(b) Each sealed source shall be tested for leak- 
age at intervals not to exceed six months. In the 
absence of a certificate from a transferor that a test 
has been made within the six months prior to the 
transfer, the sealed source shall not be put into use 
until tested. 

(c) The leak tost s hall be capable of detecting 
the presence of 0.005 microcurie of removable 
contamination on the s caled aource. An acceptable 
leak tost for scaled sources in the po ss ession of a 
radiography licensee would be to te s t at The wipe 
of a sealed source shall be performed using a leak 
test kit or method approved by the agency. The 
wipe sample shall be taken from the nearest acces- 
sible point to the sealed source storage position, or 
other appropriate measuring point, by a procedure 
to be approved pur s uant to Rule .0323(5) of thi s 
Chapter. — Record s of leak test results shall be kept 
in units of microcuries and maintained for in s peo 
tion by the agency for six months after the next 
required leak tost is performed or until the s ealed 
source is disposed of or transferred . The wipe 
sample shall be analyzed for radioactive contami- 
nation. The analysis shall be capable of detecting 
0.005uCi (185 Bq) of radioactive material on the 
test sample and shall be performed by persons 
licensed or registered by the agency to perform 
such a service. 

(d) Any test conducted pursuant to Paragraphs 
(b) and (c) of this Rule which reveals the presence 
of 0.005 microcurie (185 Bq) or more of remov- 
able radioactive material shall be considered 
evidence that the sealed source is leaking. The 
licensee shall immediately withdraw the equipment 
involved from use and shall cause it to be decon- 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



699 



PROPOSED RULES 



taminated and repaired or to be disposed of, in 
accordance with these Rules. A report describing 
the equipment involved, the test results, and the 
corrective action taken shall be submitted in 
writing to the agency at the address in Rule .0111 
of this Chapter within five days after the test. 

(e) A s ealed source which is not fastened to or 
contained in a radiographic exposure device shall 
have permanently attached to it a durable tag at 
least one inch square bearing the prescribed radia 
tion caution symbol in conventional colors, magen 
ta or purple on a yellow background, and at lea s t 

the instructions "Danger Radioactive Material. 

Do Not Handle. Notify Civil Authorities If 

Found." The licensee shall maintain records of the 
leak test results in accordance with Rule .0523 of 
this Section. 



Statutory Authority G.S. 104E-7. 

.0508 QUARTERLY INVENTORY 

(a) Each licensee shall conduct a quarterly 
physical inventory to account for all sealed sources 
received and possessed under the license . The 
records of the inventories shall be maintained for 
two years from the date of the inventory for 
in s pection by the agency, and shall include the 
quantities and kinds of radioactive material, loca 
tion of scaled sources, and the date of the invento 

*?■ 

(b) The licensee shall maintain records of the 
quarterly inventory in accordance with Rule .0523 
of this Section. 

Statutory Authority G.S. 104E-7; 104E-1 2(a)(1). 

.0509 UTILIZATION LOGS 

Each licensee or registrant shall maintain current 
utilization logs , which shall be kept available for 
two year s from the date of the recorded event, for 
inspection by the agency at the address specified in 
the license, showing for each sealed source and 
radiation machine the following: information 
required by Rule .0523 of this Section. 

{1} a description or make and model number 

of the radiographic exposure device or 
storage container in which the scaled 
s ource i s located; 

{3) the identity of the radiographer to whom 

assigned; and 
f£) the plant or s ite where u s ed and date s of 

USG. 



Statutory Authority G.S. 104E-7; 104E-1 2(a)(1). 



.0510 LIMITATIONS 

(a) The licensee or registrant shall not permit 
any person to act as a radiographer until the 
person: 

(1) has been instructed in the subjects 
outlined in Rule ^*+« .0519 of this 
Section and has demonstrated under- 
standing thereof; 

(2) has received copies of and instruction in 
the rules contained in this Section and 
in the applicable rules of Section Sec- 
tions .0200. .0300, and .0900 and 
.1600 of this Chapter, and the 
licensee's or registrant's operating and 
emergency procedures, and has 
demonstrated understanding thereof; 

(3) has demonstrated competence to use the 
radiographic exposure devices, sealed 
sources, related handling tools^ 
radiation machines and survey 
instruments which will be employed in 
his assignment; and 

(4) has demonstrated understanding of the 
instructions in Paragraph (a) of this 
Rule by successful completion of a 
written test and a field examination on 
the subjects covered. 

(b) The licensee or registrant shall not permit 
any person to act as a radiographer's assistant until 
the person: 

(1) has received copies of and instructions 
in the licensee's or registrant's 
operating and emergency procedures, 
and has demonstrated understanding 
thereof; 

(2) has demonstrated competence to use 
under the personal supervision of the 
radiographer, the radiographic exposure 
devices, sealed sources, related 
handling tools^ radiation machines and 
radiation survey instruments which will 
be employed in his assignment; and 

(3) has demonstrated understanding of the 
instructions in Paragraph (b) of this 
Rule by successfully completing a 
written or oral test and a field 
examination on the subjects covered. 

(c) Records of the training including copies of 
written tests and dates of oral tests and field 
examinations shall be maintained for three years in 
accordance with Rule .0523 of this Section . 

(d) Each licensee or registrant shall conduct an 
internal audit program to ensure that the agency's 
radioactive material license, registration conditions 
and the licensee's or registrant's operating and 



700 



9:10 



NORTH CAROLINA REGISTER 



August IS, 1994 



PROPOSED RULES 



emergency procedures are followed by each 
radiographer and radiographer's assistant. These 
internal audits shall be performed and records 
maintained by the licensee or registrant as 
specified in Sub-items (3)(a) and (b) of Rule .0323 
of this Chapter. 

(e) The licensee or registrant shall provide 
periodic training for radiographers and 
radiographer's assistants at least once during every 
twelve months. 

(f) Whenever radiography is performed outside 
of a permanent radiographic installation, the 
radiographer shall be accompanied by another 
qualified radiographer or an individual with, at 
least, the qualifications of a radiographer's 
assistant. This person's responsibilities shall 
include but not be limited to observing the 
operations and being capable and prepared to 
provide immediate assistance to prevent 
unauthorized entry. Unless otherwise authorized 
by the agency, radiography shall not be performed 
if only one qualified individual is present. 

(g) The radiation safety officer shall ensure that 
radiation safety activities are being performed in 
accordance with a pproved procedures and 
regulatory requirements in the daily operation of 
the licensee's or registrant's program. 

(1) The radiation safety officer's 

qualifications shall include: 

(A) completion of the training and testing 

requirements of Paragraph (a) of this 

Rule; and 

£BJ Two years documented experience in 

industrial radiographic operations, 

with at least 40 hours of formal class- 



Rule, including any corrective mea- 
sures when levels of radiation exceed 
established limits; 



£21 



room training with respect to the 
oversight of radiation protection 
programs or an equivalent combina- 
tion of education and experience. 
The specific duties of the radiation 
safety officer shall include, but are not 
limited to, the following: 

(A) to establish and oversee operating, 
emergency and ALARA procedures, 
and to review them regularly to assure 
that the procedures are current and 
conform with these Rules; 

(B) to oversee and a pprove all phases of 
the training of radiographic personnel 
so that a ppropriate and effective 
radiation protection practices are 
taught; 

(C) to ensure that required radiation sur- 
veys and leak tests are performed and 
documented in accordance with this 



(D) to ensure that personnel monitoring 
devices are calibrated and used prop- 
erly by occupationallv-exposed per- 
sonnel, that records are kept of the 
monitoring results, and that timely 
notifications are made as required by 
Rule . 1646 of this Chapter; 

(E) to assure that operations are conduct- 
ed safely and to assume control and 
have the authority to institute correc- 
tive actions including stopping of 
operations when necessary in emer- 
gency situations or unsafe conditions. 

(h) Notwithstanding the provisions of Paragraph 
(g) of this Rule, any person authorized by license 
or registration condition to serve as the radiation 
safety officer on the effective date of this Rule, 
shall not be required to meet the training require- 
ments in Subparagraph (g)(1) of this Rule until 
October 1. 1996. 

Statutory Authority G.S. 104E-7; 10 C.F.R. Chap- 
ter 1, Commission Notices, Policy Statements, 
Agreement States, 46 ER. 7540. 

.0511 INSPECTION AND MAINTENANCE 

(a) The licensee or registrant shall conduct a 
program for inspection and maintenance of radio- 
graphic exposure devices, storage containers, and 
source changers^ radiation machines and associated 
equipment at intervals not to exceed three months 
or prior to the first use thereafter to assure proper 
functioning of components important to safety. 
Records of these inspections and maintenance shall 
be kept by the licensee or registrant for two years 
made in accordance with Rule .0523 of this Sec- 
tion . If defects are found, the affected radiograph- 
ic exposure devices, storage containers, source 
changers, radiation machines and associated 
equipment shall be removed from service until 
repaired and a record made in accordance with 
Rule .0523 of this Section. 

(b) Prior to use each day, the The licensee or 
registrant shall visually check for obvious defects 
in radiographic exposure devices, storage contain- 
ers, and source changers^ radiation machines and 
associated equipment prior to use each day the 
equipment i s u s ed . The purpose of the visual 
check is to assure that the radiographic exposure 
devices, storage containers, source changers, 
radiation machines and associated equipment are in 
good working condition and that the required 



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701 



PROPOSED RULES 



labeling is present. If defects are found, the 
affected radiographic exposure devices, storage 
containers, source changers, radiation machines 
and associated equipment shall be removed from 
service until repaired and a record shall be made 
in accordance with Rule .0523 of this Section . 

(c) Each exposure device using depleted urani- 
um (DID shielding and an "S" tube configuration 
shall be tested for DU contamination at intervals 
not to exceed 12 months. This test shall be per- 
formed by the licensee using a pproved test kits or 
by the licensee returning the exposure device to 
the manufacturer for such testing. If the test 
reveals the presence of DU contamination, the 
exposure device shall be removed from use and 
arrangements for proper disposal shall be made. 

Statutory Authority G.S. 104E-7. 

.0512 PERSONNEL MONITORING 

(a) The licensee or registrant shall not permit 
any individual to act as a radiographer or a radio- 
grapher's assistant unless, at all times during 
radiographic operations, each such individual 
wears a direct reading pocket dosimeter, an alarm 
ratemeter, and either a film badge or a 
thcrmolumincsecncc thermoluminescent dosimeter 
(TLD) except that for permanent radiography 
facilities where other a ppropriate alarming or 
warning devices are in routine use, the wearing of 
an alarming ratemeter is not required . Pocket 
dosimeters shall have a range from zero to at least 
200 milliroentgens £2 millisieverts) and shall be 
recharged daily or at the start of each shift. Each 
film badge and thcrmoluminoaccnoc — dosimeter 
TLD shall be assigned to and worn by only one 
individual. Film badges and TLDs shall be 
exchanged at least monthly. After exchange, each 
film badge or TLD shall be promptly processed. 

(b) Pocket dosimeters shall be read and expo- 
sures recorded daily. — An individual's film badge 
or thcrmolumincflccnce dosimeter shall be immedi 
atcly proces s ed if his pocket dosimeter is dis 
charged beyond its range. — Reports received from 
the badge or dosimeter processor and records of 
the pocket dosimeter readings s hall be maintained 
for inspection by the agency until it authorizes 
their disposal at the beginning and end of each 
shift . 

(c) Pocket dosimeters shall be checked at peri- 
ods not to exceed one year 12 months for correct 
response to radiation. Acceptable dosimeters shall 
read within plus or minus 30 percent of the true 
radiation exposure. 

(d) If an individual's pocket dosimeter is found 



to be off-scale, and the possibility of radiation 
exposure cannot be ruled out as the cause, their 
film badge or TLD shall be immediately sent for 
processing. In addition, the individual shall not 
work with sealed sources until a determination of 
his radiation exposure has been made by the 
radiation safety officer or his designee. 

(e) If a film badge or TLD is lost or damaged, 
the worker shall cease work immediately until a 
replacement film badge or TLD is provided and 
exposure is calculated for the time period from 
issuance to loss or damage of the film badge or 
TLD. 

(f) Each alarm ratemeter shall: 

(1) be checked to ensure that the alarm 
functions properly prior to use at the 
start of each shift: 

(2) be set to give an alarm signal at a 
preset rate not to exceed 500 mR/hr or 
5 mSv/hr; 

(3) require special means to change the 
preset alarm function; 

(4) alarm within plus or minus 20 percent 
of the true radiation rate; 

(5) be calibrated at periods not to exceed 
one year for correct response to radia- 
tion. 

(g) Records of daily dosimeter readings, deter- 
mination of exposure as a result of a lost or dam- 
aged film badge or TLD. 12 month response 
checks on dosimeters and results from the film 
badge or TLD processor shall be maintained in 
accordance with Rule .0523 of this Section. 

(h) Notwithstanding the requirements of Para- 
graph (a) of this Rule, the agency may a pprove a 
higher pocket dosimeter range upon written request 
by_ the license or registrant if the agency deter- 
mines that the requested range will afford the 
protection required by the rules in this Chapter. 

Statutory Authority G.S. 104E-7; 104E-12(a)(2). 

.0513 OPERATING AND EMERGENCY 
PROCEDURES 

The licensee's or registrant's operating and 
emergency procedures shall include instructions in 
at least the following: 

(1) the handling and use of sources of radia- 
tion to be employed such that no individ- 
ual is likely to be exposed to radiation 
doses in excess of the limits established 
in Rule .1604 of this Chapter; 

(2) methods and occasions for conducting 
radiation surveys; 

(3) methods for controlling access to radio- 



702 



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PROPOSED RULES 



graphic areas; 

(4) methods and occasions for locking and 
securing sources of radiation; 

(5) personnel monitoring and the use of 
personnel monitoring equipment; 

(6) transportation to field locations, including 
packing of sealed sources of radiation in 
the vehicles, posting of vehicles, and 
control of sealed sources of radiation 
during transportation; 

(7) minimizing exposure of individuals in the 
event of an accident; 

(8) the procedure for notifying proper per- 
sonnel in the event of an accident; 

(9) maintenance of records; 

(10) the inspection and maintenance of radio- 
graphic exposure devices^ radiation ma- 
chines and storage containers; and 

(1 1) steps must that shall be taken immediate- 
ly by radiography personnel in the event 
a pocket dosimeter is found to be off 
scaler^ and 

(12) sealed source recovery procedure if the 
licensee will perform sealed source re- 
covery. 

Statutory Authority G.S. 104E-7. 

.0514 SECURITY 

During each radiographic operation the radiogra- 
pher or radiographer's assistant shall maintain a 
continuous direct surveillance of the operation to 
protect against unauthorized entry into a high 
radiation area, as defined in Rule .0104 of this 
Chapter, except where the high radiation area: 

(1) is equipped with a control device or an 
alarm system as described in Rule .1615 
of this Chapter, or 

(2) is locked to protect against unauthorized 
or accidental entry. 

Statutory Authority G.S. 104E-7. 

.0515 RADIATION SURVEYS AND 
SURVEY RECORDS 

(a) No radiographic operation shall be conducted 
unless calibrated and operable radiation survey 
instrumentation as described in Rule .0506 of this 
Section is available and used at each site where 
radiography is performed, including sealed source 
exchange and at the storage area whenever a 
radiographic exposure device, a storage container 
or sealed source is being placed in storage . 

(b) A survey with a radiation detection instru- 
ment shall be made after each radiographic expo- 



sure to determine that the sealed source has re- 
turned to its shielded position in the radiographic 
exposure device or the radiation machine is off . 
The entire circumference of the dcvioc s hall be 
surveyed. — If the radiographic exposure device has 
a source guide tube, the survey shall include the 
guide tube. For sealed sources, the licensee shall 
conduct a survey as the radiographer or radio- 
grapher's assistant approaches the guide tube prior 
to exchanging films, repositioning the collimator 
or dismantling the radiographic exposure device 
and associated equipment. 

(c) When the use of a radiographic exposure 
device or storage container is to be terminated at 
the end of a work period, a survey with a radiation 
detection instrument shall be made of the locked 
radiography device or storage container to deter- 
mine that the sealed source is in its shielded 
position. A record of the surveys required by this 
Rule s hall be kept for two years. 

(d) A survey of the radiographic exposure 
device and source changer shall be performed with 
a radiation detection instrument any time the sealed 
source is exchanged and whenever a radiographic 
exposure device is placed in a storage area. 

(e) {d}An area survey of the perimeter of the 
restricted area with a radiation detection instrument 
shall be made with the sealed source exposed or 
the radiation machine on before or during the 
initial radiographic exposure on each shift and 
when the sealed source or the radiation machine 
target configuration for an exposure is substantially 
different from that of the preceding exposure. 
These surveys are not required for radiography 
performed in a permanent radiographic installation. 

(f) Records of surveys required by this Rule 
shall be maintained in accordance with the require- 
ments of Rule .0523 of this Section. 

Statutory Authority G.S. 104E-7; 104E-12(a)(l). 

.0517 SUPERVISION OF 

RADIOGRAPHERS' ASSISTANTS 

(a) Whenever a radiographer's assistant uses 
radiographic exposure devices or radiation ma- 
chines , uses sealed sources or related source 
handling tools, or conducts radiation surveys 
required by Rule .0515(b) and (c) of this Section 
to determine that the exposure has been terminated 
and, if applicable, the sealed source has returned 
to the shielded position after an exposure, he shall 
be under the personal supervision of a radiogra- 
pher. 

(b) The personal supervision shall include: 

(1) the radiographer's personal presence at 



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703 



PROPOSED RULES 



the site where the sealed sources or 
radiation machines are being used; 

(2) the ability of the radiographer to give 
immediate assistance, if required; and 

(3) the radiographer's watching the 
assistant's performance of the 
operations referred to in this Section. 

Statutory Authority G.S. 104E-7. 

.0518 RADIATION MACHINES 

The following are special requirements for 
radiography employing radiation machines: 
(1) Cabinet radiography using radiation 
machines , as defin e d in Rule .0502 of 
th4s — Section shall be exempt from 
requirements of this Section except that 
no registrant shall permit any individual 
to operate a cabinet radiography unit 
until: 

(a) the registrant has provided the individu- 
al a copy of, and instruction in, the 
operating procedures for the unit; and 

(b) the individual has demonstrated, to the 
registrant, understanding of the operat- 
ing procedures for the unit and compe- 
tence in its use. 

(3) Shielded Room Radiography using radin 

tion machines, os defined in Rule .0502 
of thi s Section, shall be exempt from the 
requirements of thi s Section; except that! 

{a) No registrant s hall permit any individu 

al to operate a radiation machine for 
shielded room radiography until: 

{i) the registrant has provided the indi 

vidual a copy of, and instruction in, 
the operating procedures for the unit; 

nuu 

{«) — the individual has demonstrated, to 
the registrant, understanding of the 
operating procedures for the unit and 
competence in its u s e. 

{b) Each registrant shall supply appropriate 

personnel monitoring equipment to, and 
shall require the use of s uch equipment 
by, every individual who operates, who 
makes "set up s " or who performs main 
tonanoc — en — a — radiation — machine — fef 
shielded room radiography. 

{e) A physical radiation survey shall be 

conducted to determine that the rodia 
tion machine i s — "off" prior to each 
entry into the shielded room. — Such 
survey s shall bo made with a radiation 
measuring in s trument which i s capable 



12) 



<&■ 



of measuring radiation of the energie s 
and at the exposure rates to be encoun - 
tered, which is in good working order, 
and which has been properly calibrated 
within the preceding throe months or 
following the last instrument servicing, 
whichever i s later. 
{3) Other radiography using radiation 
machines are exempt from Rules .0503, 
.0504. .0505, .0507, and .0508 and 
.0521 of this Sectio n; however:. . 
— A phy s ical radiation survey shall be 
conducted to determine that the radia 
tion machine i s — "off" prior to each 
entry into the radiographic exposure 
area. — Such surveys shall be made with 
a radiation measuring instrument capa 
ble of measuring radiation of the cnor 
gice and at the exposure rates to bo 
encountered, which is in good working 
order, and which has been properly 
calibrated within the preceding throe 
months or following the last instrument 
servicing, whichever i s later. — Swvey 
results and records of boundary loca - 



tions — shall — be — maintained — and- 
nvailable for inspection; and 



-kept 



(b) Mobile or portable radiation machine s 

shall be physically secured to prevent 
removal by unauthorized personnel. 

Statutory Authority G.S. 104E-7; 104E-12(a)(l). 

.0519 SUBJECTS TO BE COVERED 
DURING INSTRUCTION OF 
RADIOGRAPHERS 

The following subjects shall be covered in the 
instructions of radiographers: 

(1) fundamentals of radiation safety 

(a) characteristics of gamma and 
x-radiation 

(b) units of radiation dose (mrem^ sieverf) 
and quantity of radioactivity (curie A 
becquerel) 

(c) hazards of excessive exposure of 
radiation 

(d) levels of radiation from sources of 
radiation 

(e) methods of controlling radiation dose 
(i) working time 

(ii) working distances 
(iii) shielding 

(2) radiation detection instrumentation to be 
used 

(a) use of radiation survey instruments 



704 



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PROPOSED RULES 



(i) operation 
(ii) calibration 
(iii) limitations 

(b) survey techniques 

(c) use of personnel monitoring equipment 
(i) film badges 

(ii) pocket dosimeters 
(iii) pocket chambers 

(3) radiographic equipment to be used 

(a) remote handling equipment 

(b) radiographic exposure deviceSi radia- 
tion machines and sealed sources 

(c) storage containers 

(d) operation and control of x my radiogra- 
phy equipment 

(e) storage, control and disposal of sealed 
sources 

(4) the requirements of pertinent federal and 
state regulations 

(5) the licensee's or registrant's written 
operating and emergency procedures 

(6) inspection and maintenance performed by 
radiographers 

(7) case histories of radiography accidentST 

(8) the conditions of the license or registra- 
tion issued by the agency. 

Statutory Authority G.S. 104E-7. 

.0520 PERMANENT RADIOGRAPHIC 
INSTALLATIONS 

(a) Permanent radiographic installations having 
high radiation area entrance controls of the types 
described in Subparagraphs (a)(1), (2) and (3) of 
Rule .1615 of this Chapter shall also meet the 
following special requirements: 

(1) Each entrance that is used for personnel 
access to the high radiation area in a 
permanent radiographic installation to 
which this Section applies shall have 
both visible and audible warning signals 
to warn of the presence of radiation. 

(2) The visible signal shall be actuated by 
radiation whenever the sealed source is 
exposed. 

(3) The audible signal shall be actuated 
when an attempt is made to enter the 
installation while the sealed source is 
exposed. 

(b) The alarm system shall be tested for proper 
operation at intervals not to exceed three months 
and at the beginning of each day of equipment use. 
or prior to the first use thereafter of the source in 
the installation. — Records of the teats shall be kept 
for two years by the licensee The daily test shall 



include a check of the visible and audible signals 
by exposing the sealed source or operating the 
radiation machine prior to use of the room. If a 
control device or alarm is operating improperly, it 
shall immediately be labeled as defective and 
repaired before industrial radiographic operations 
are resumed. 

(c) Records of test of alarm functions shall be 
maintained in accordance with Rule .0523 of this 
Section. 

Statutory Authority G.S. 104E-7; 104E-1 2(a)(1). 

.0521 PERFORMANCE REQUIREMENTS 
FOR RADIOGRAPHY 
EQUIPMENT 

Equipment used in radiographic operations shall 
meet the following minimum criteria: 

(1) Each radiographic exposure device and 
all associated equipment shall meet the 
requirements specified in American Na- 
tional Standard N43.9-1991 "Radiological 
Safety for the Design and Construction of 
Apparatus for Gamma Radiography". 

(2) In addition to the requirements specified 
in Item (1) of this Rule, the following 
requirements apply to radiographic expo- 
sure devices and associated equipment: 

(a) Each radiographic exposure device shall 
have attached to it by the user a dura- 
ble, legible, clearly visible label bearing 
the following: 
£i) Chemical symbol and mass number of 

the radionuclide in the device: 
(ii) Activity and the date on which this 

activity was last measured: 
(iii) Model number and serial number of 



the sealed source: 
(iv) Manufacturer of the 

and 
(v) Licensee's 



sealed source: 



name, address, and tele- 
phone number. 

(b) Radiographic exposure devices intended 
for use as Type B transport containers 
shall meet the applicable requirements 
of lO CFRPart 71. 

(c) Modification of any exposure devices 
and associated equipment is prohibited, 
unless the design of any replacement 
component, including sealed source 
holder, source assembly, controls or 
guide tubes would not compromise the 
design safety features of the system. 

(3) In addition to the requirements specified 
in Items (1) and (2) of this Rule, the 



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705 



PROPOSED RULES 



following requirements apply to radio- 
graphic exposure devices and associated 
equipment that allow the sealed source to 
be moved out of the device for routine 
operation. 

(a) The coupling between the source as- 
sembly and the control cable shall be 
designed in such a manner that the 
source assembly will not become dis- 
connected if cranked outside the guide 
rube. The coupling shall be such that it 
cannot be unintentionally disconnected 
under normal and reasonably foresee- 
able abnormal conditions. 

(b) The device shall automatically secure 
the source assembly when it is cranked 
back into the fully shielded position 
within the device. This securing system 
shall be designed to only allow release 
of the sealed source by means of a 
deliberate operation on the exposure 
device. 

(c) The outlet fittings, lock box, and drive 
cable fittings on each radiographic 
exposure device shall be equipped with 
safety plugs or covers which shall be 
installed during storage and transporta- 
tion to protect the source assembly 
from water, mud, sand or other foreign 
matter. 

(d) Each sealed source or source assembly 
shall have attached to it or engraved in 
it^ a durable, legible, visible label with 
the words: "DANGER-RADIOAC- 
TIVE." The label shall not interfere 
with the safe operation of the exposure 
device or associated equipment. 

(e) The guide rube shall have passed the 
crushing tests for the control tube as 
specified in ANSI N432 and a kinking 
resistance test that closely approximates 
the kinking forces likely to be encoun- 
tered during use. 

(f) Guide tubes shall be used when moving 
the sealed source out of the device. 

(g) An exposure head or similar device 
designed to prevent the source assembly 
from passing out of the end of the guide 
tube shall be attached to the outermost 
end of the guide tube during radio- 
graphic operations. 

(h) The guide tube exposure head connec- 
tion shall be able to withstand the ten- 
sile test for control units specified in 
ANSI N432. 



(i) Source changers shall provide a system 
for assuring that the sealed source will 
not be accidentally withdrawn from the 
changer when connecting or disconnect- 
ing the drive cable to or from a source 
assembly. 

(4) All newly manufactured radiographic 
exposure devices and associated equip- 
ment acquired by licensees after the 
effective date of this Rule shall comply 
with the requirements of this Rule. 

(5) All radiographic exposure devices, source 
assemblies and associated equipment in 
use after January 10. 1996 shall comply 
with the requirements of this Rule. 

(6) All associated equipment acquired after 
January 10. 1996 shall be labeled to 
identify that the components have met the 
requirements of this Rule. 

Statutory Authority G.S. 104E-7. 

.0522 REPORTING REQUIREMENTS 

(a) In addition to the reporting requirements 
specified in other rules of this Chapter, each 
licensee or registrant shall provide a written report 
to the agency at the address specified in Rule 
.0111 of this Chapter within 30 days of the occur- 
rence of any of the following incidents involving 
radiographic equipment: 

(1) unintentional disconnection of the 
source assembly from the control cable; 

(2) inability to retract the source assembly 
to its fully shielded position and secure 
it in this position; or 

(3J failure of any component critical to safe 
operation of the device to properly 
perform its intended function. 

(b) The licensee or registrant shall include the 
following information in each report required by 
Paragraph (a) of this Rule, and in each report of 
overexposure submitted pursuant to Section .1600 
which involves failure of safety components of 
radiography equipment: 

(1) a description of the equipment problem; 

(2) cause of each incident, if known; 

(3) manufacturer and model number of 
equipment involved in the incident: 

£4} place, time and date of the incident: 

(5) actions taken to establish normal opera- 
tions; 

(6) corrective actions taken or planned to 
prevent recurrence; and 

(7) qualifications of personnel involved in 
the incident. 



706 



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PROPOSED RULES 



Statutory Authority G.S. 104E-7. 



.0523 RECORDS OF INDUSTRIAL 
RADIOGRAPHY 

(a) Each licensee or registrant shall maintain. 
for a period of three years after the record is made 
or until the agency authorizes disposition, the 
following records for inspection by. the agency: 

(1) copies of the following documents: 

(A) radioactive materials license or regis- 
tration issued by the agency: 

(B) the complete application submitted for 
the license or registration that 
includes all amendments: and 

(C) current operating and emergency 
procedures: 

(2) records showing the receipt and transfer 
of all sealed sources that include: 

(A) date: 

(B) individual making the record: 

(C) radionuclide: 

(D) activity in curies or becquerel: and 

(E) make, model and serial number of 
each sealed source and device: 

(3) records of the calibrations of radiation 
detection instrumentation: 

(4) records of leak tests in units of 
microcuries or becquerel: 

(5) records of quarterly inventories that 
include: 

(A) radionuclide: 

(B) activity in curies or becquerel: 

(C) specific information on each sealed 
source and the radiographic exposure 
device, storage container or source 
changer which contains the sealed 
source to include: 

m 



mi 



model numbers; 
serial numbers: and 



(iii) manufacturers names: 



(D) location of sealed sources: 

(E) name of the individual conducting the 
inventory; and 

(F) the date of the inventory; 

(6) records of utilization logs showing the 
following information: 

(A) a description of each radiographic 
exposure device, radiation machine or 
storage container in which the sealed 
source is located that includes: 

(i) make; 

(ii) model number; and 

(iii) serial number; 

(B) the identity and signature of the 
radiographer to whom assigned; and 



CD. 



(C) the plant or site where used; and 

(D) dates of use that includes the dates 
removed and returned to storage; 

records of inspection and maintenance 
of radiographic exposure devices, 
storage containers, associated 
equipment. source changers and 
radiation machines. The record shall 
include: 

(A) date of the check; 

(B) name of the individual performing the 
check; 

(C) equipment involved; 

(D) any defects found: and 

(E) any repairs made and name of 



£8} 
(21 



individual or company performing the 
repair; 
records of alarm system tests for 



permanent radiographic installations; 
records of the training of each 
radiographer and radiographer's 
assistant as follows: 

(A) for initial training, copies of written 
tests, dates and results of oral tests 
and field examinations; and 

(B) for periodic training, list of topics 
discussed, date(s) of the review and 
the attendees; 

(10) records for pocket dosimeters to include 
daily exposure readings and yearly 
operability checks; 

(11) records of reports received from the 
film badge or TLD processor. These 
records shall be maintained until the 
agency terminates the license or 
registration or until authorized by the 
agency; 

(12) records of exposure device surveys 
performed at the end of the work day 
and prior to placing the device in 
storage; and 

(13) records of area surveys required by 
Rule .0515 of this Section. 

(b) Each licensee or registrant conducting 
operations at temporary jobsites shall maintain 
copies of the following documents and records at 
the temporary iobsite until the radiographic 
operation is completed: 

(1) operating and emergency procedures 
required by Rule .0513 of this Section; 

(2) radioactive materials license or 
registration; 

(3) evidence of training of the 
radiographers and radiographer's 
assistants. The individuals shall either 



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707 



PROPOSED RULES 



be listed on the radioactive materials 
license or registration and offer proper 
identification or shall have certification 
of his training and offer proper 
identification; 

(4) evidence of the latest calibration of the 
radiation detection instrumentation in 
use at the site as required by Rule 
.0506 of this Section; 

(5) evidence of the latest leak test of the 
sealed source required by Rule .0507 of 
this Section; 

(6) records of the latest surveys required by 
Rule .0515 of this Section; 

(7) records of current pocket dosimeter 
readings; 

(8) shi pping papers for the transportation of 
radioactive materials required by 10 
CFR Part 71.5; and 

(9) records of area surveys required by. 
Rule .0515 of this Section. 

(c) Each record required by this Rule shall be 
legible throughout the specified retention period. 
The record may be an original, a reproduced copy 
or microform provided that the copy or microform 
is authenticated by authorized personnel and that 
the microform is capable of reproducing a clear 
copy throughout the required record retention 
period. The record may also be stored in 
electronic media with the capability for producing 
legible, accurate and complete records during the 
required record retention period. Records, such as 
letters, drawings and specifications shall include all 
pertinent information, such as stamps, initials and 
signatures. The licensee or registrant shall 
maintain safeguards against tampering with and 
loss of records. 

Statutory Authority G.S. 104E-7. 

SECTION .1600 - STANDARDS FOR 

PROTECTION AGAINST 

RADIATION 

.1625 EXCEPTIONS TO POSTING 
REQUIREMENTS 

(a) A licensee is not required to post caution 
signs in areas or rooms containing radioactive 
materials for periods of less than eight hours, if 
each of the following conditions is met: 

(1) The materials are constantly attended 
during these periods by an individual 
who takes the precautions necessary to 
prevent the exposure of individuals to 
radiation or radioactive materials in 



excess of the limits established in the 
rules in this Section; and 
(2) The area or room is subject to the 
licensee's control. 

(b) Rooms or other areas in hospitals that are 
occupied by patients are not required to be posted 
with caution signs pursuant to Rule .1624 of this 
Section provided that: 

(1) The patient is being treated with sealed 
sources or has been treated with un- 
sealed radioactive material in quantities 
less than 30 millicuries (110 MBq), or 
the measured dose rate at one meter 
from the patient is less than 0.005 rem 
(0.05 mSv) per hour; and 

(2) There are personnel in attendance who 
will take the necessary precautions to 
prevent the exposure of individuals to 
radiation or radioactive material in 
excess of the limits established in this 
Section and to operate within the 
ALARA provisions of the licensee's 
radiation protection program. 

(c) A room or area is not required to be posted 
with a caution sign because of the presence of a 
sealed source provided the radiation level at 30 
centimeters from the surface of the source contain- 
er or housing does not exceed 0.005 rem (0.05 
mSv) per hour. 

(d) Rooms or other areas in medical facilities 
that are occupied by patients while being treated 
with radiation from an accelerator are not required 
to be posted with a caution sign pursuant to Rule 
.1624(c) of this Section provided that: 

(1) access to the room or area is posted in 
accordance with Rule .1624(b) of this 
Section; and 

(2) there are personnel in attendance who 
shall provide assurance that: 

(A) continuous audio and visual observa- 
tion of the patient is maintained dur- 
ing treatment; 

(B) all provisions of Subparagraph (b)(2) 
of this Rule are met; and 

(C) the accelerator is secured in the 
"beam off" status at the end of each 
patient's treatment. 

Statutory Authority G.S. 104E-7(a)(2). 



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TITLE 18 - SECRETARY OF 
STATE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Department of the Secre- 
tary of State, Securities Division intends to amend 
rule cited as 18 NCAC 6 . 1801. 

The proposed effective date of this action is 
December 1, 1994. 

I he public hearing will be conducted at 10:00 
a.m. on October 3, 1994 at the Securities Division 
Conference Room, Suite 100, 300 N. Salisbury St. , 
Raleigh, NC 27603. 

Reason for Proposed Action: To define as an 
unethical business practice, an investment 
adviser's use of unregistered investment adviser 
representatives. 

Comment Procedures: Interested persons may 
present oral or written statements at the public 
hearing, or in writing prior to the meeting by mail 
addressed to Mr. Gene Cella, Administrator, 
Securities Division, N.C. Dept. of the Secretary of 
State, 300 N. Salisbury St. , Raleigh, NC 27603. 
For copies of any information related to the 
hearing call (919) 733-3924, or write to the 
aforementioned address. The comment period will 
end on October 3, 1994. 

CHAPTER 6 - SECURITIES 
DIVISION 

SECTION .1800 - MISCELLANEOUS 

PROVISIONS - INVESTMENT 

ADVISERS 

.1801 DISHONEST OR UNETHICAL 
PRACTICES 

(a) An investment adviser is a fiduciary and has 
a duty to act primarily for the benefit of its clients. 
While the extent and nature of his duty varies 
according to the nature of the relationship between 
an investment adviser and its clients and the 
circumstances of each case, an investment adviser 
shall not engage in unethical business practices, 
including the following: 

(1) Recommending to a client to whom 
investment supervisory, management or 
consulting services are provided the 



purchase, sale or exchange of any 
security without reasonable grounds to 
believe that the recommendation is 
suitable for the client on the basis of 
information furnished by the client after 
reasonable inquiry concerning the 
client's investment objectives, financial 
situation and needs, and any other 
information known or acquired by the 
investment adviser after reasonable 
examination of such of the client's 
financial records as may be provided to 
the investment adviser; 

(2) Placing an order to purchase or sell a 
security for the account of a client 
without authority to do so; 

(3) Placing an order to purchase or sell a 
security for the account of a client upon 
instruction of a third party without first 
having obtained a written third-party 
trading authorization from the client; 

(4) Exercising any discretionary authority 
in placing an order for the purchase or 
sale of securities for a client without 
obtaining written discretionary authority 
from the client within ten business days 
after the date of the first transaction 
placed pursuant to oral discretionary 
authority. Discretionary power does 
not include a power relating solely to 
the price at which, or the time when, 
an order involving a definite amount of 
a specified security shall be executed, 
or both; 

(5) Inducing trading in a client's account 
that is excessive in size or frequency in 
view of the financial resources, 
investment objectives and character of 
the account; 

(6) Borrowing money or securities from a 
client unless the client is a dealer, an 
affiliate of the investment adviser, or a 
financial institution engaged in the 
business of lending funds or securities; 

(7) Lending money to a client unless the 
investment adviser is a financial 
institution engaged in the business of 
lending funds or a dealer, or unless the 
client is an affiliate of the investment 
adviser; 

(8) Misrepresenting to any advisory client, 
or prospective advisory client, the 
qualifications of the investment adviser 
or any employee of the investment 
adviser, or misrepresenting the nature 



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709 



PROPOSED RULES 



of the advisory services being offered 
or fees to be charged for such service, 
or omitting to state a material fact 
necessary to make the statements made 
regarding qualifications, services or 
fees, in light of the circumstances under 
which they are made, not misleading; 

(9) Providing a report or recommendation 
to any advisory client prepared by 
someone other than the adviser without 
disclosing that feet. (This prohibition 
does not apply to a situation in which 
the adviser uses published research 
reports or statistical analyses to render 
advice or where an adviser orders such 
a report in the normal course of 
providing service.); 

(10) Charging a client an advisory fee that is 
unreasonable in the light of the type of 
services to be provided, the experience 
and expertise of the adviser, the 
sophistication and bargaining power of 
the client, and whether the adviser has 
disclosed that lower fees for 
comparable services may be available 
from other sources; 

(11) Failing to disclose to a client in writing 
before entering into or renewing an 
advisory agreement with that client any 
material conflict of interest relating to 
the adviser or any of its employees 
which could reasonably be expected to 
impair the rendering of unbiased and 
objective advice including: 

(A) Compensation arrangements 
connected with advisory services to 
clients which are in addition to 
compensation from such clients for 
such services; and 

(B) Charging a client an advisory fee for 
rendering advice when a commission 
for executing securities transactions 
pursuant to such advice will be 
received by the adviser or its 
employees; 

(12) Guaranteeing a client that a specific 
result will be achieved (gain or no loss) 
as a result of the advice which will be 
rendered; 

(13) Publishing, circulating or distributing 
any advertisement which does not 
comply with Rule 206(4)- 1 under the 
Investment Advisers Act of 1940; 

(14) Disclosing the identity, affairs or 
investments of any client to any third 



party unless required by law to do so, 
or unless consented to by the client; 

(15) Taking any action, directly or 
indirectly, with respect to those 
securities or funds in which any client 
has any beneficial interest, where the 
investment adviser has custody or 
possession of such securities or funds 
when the adviser's action is subject to 
and does not comply with the 
safekeeping requirements of Rule 
206(4)-2 under the Investment Advisers 
Act of 1940, unless the investment 
adviser is exempt from such 
requirements by virtue of Rule 
206(4)-2(b); 

(16) Entering into, extending or renewing 
any investment advisory contract, other 
than a contract for impersonal advisory 
services, unless such contract is in 
writing and discloses, in substance: the 
services to be provided; the term of the 
contract; the advisory fee or the 
formula for computing the fee; the 
amount or the manner of calculation of 
the amount of the prepaid fee to be 
returned in the event of contract 
termination or non-performance; 
whether the contract grants 
discretionary authority to the adviser; 
and that no assignment of such contract 
shall be made by the investment adviser 
without the consent of the other party to 
the contract; aad 

(17) Failing to disclose to any client or 
prospective client all material fects with 
respect to: 

(A) A financial condition of the adviser 
that is reasonably likely to impair the 
ability of the adviser to meet 
contractual commitments to clients, if 
the adviser has discretionary authority 
(express or implied) or custody over 
such client's funds or securities, or 
requires prepayment of advisory fees 
of more than five hundred dollars 
($500.00) from such client, six 
months or more in advance; or 

(B) A legal or disciplinary event that is 
material to an evaluation of the 
adviser's integrity or ability to meet 
contractual commitments to clients.; 
and 

(18) Utilizing an agent or subagent who 
satisfies the definition of an investment 



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PROPOSED RULES 



adviser representative as set forth in 

G.S. 78C-2(3), where such agent or 

subagent is not registered as an 

investment adviser representative 

pursuant to G.S. 78C-16. 

The conduct set forth in Rule .1801(a) is not 

inclusive. It also includes employing any device, 

scheme, or artifice to defraud or engaging in any 

act, practice or course of business which operates 

or would operate as a fraud or deceit. 

(b) There shall be a rebuttable presumption that 
the following legal or disciplinary events involving 
the adviser or a management person of the adviser 
(any of the foregoing being referred to hereafter as 
"person") that were not resolved in the person's 
favor or subsequently reversed, suspended, or 
vacated are material within the meaning of 
Subparagraph (a)(17)(B) of this Rule for a period 
of ten years from the time of the event: 

(1) A criminal or civil action in a court of 
competent jurisdiction in which the 
person: 

(A) was convicted, pleaded guilty or nolo 
contendere ("no contest") to a felony 
or misdemeanor, or is the named 
subject of a pending criminal 
proceeding (any of the foregoing 
referred to hereafter as "action"), and 
such action involved: an 
investment-related business, fraud, 
false statements, or omissions; 
wrongful taking of property; or 
bribery, forgery, counterfeiting, or 
extortion; 

(B) was found to have been involved in a 
violation of an investment-related 
statute or regulation; or 

(C) was the subject of any order, 
judgment, or decree permanently or 
temporarily enjoining the person 
from, or otherwise limiting the person 
from, engaging in any 
investment-related activity; 

(2) Administrative proceedings before the 
Administrator, Securities and Exchange 
Commission, any other federal 
regulatory agency or any other state 
agency (any of the foregoing being 
referred to hereafter as "agency") in 
which the person: 

(A) was found to have caused an 
investment-related business to lose its 
authorization to do business; 

(B) was found to have been involved in a 
violation of an investment-related 



statute or regulation and was the 
subject of an order by the agency 
denying, suspending, or revoking the 
authorization of the person to act in, 
or barring or suspending the person's 
association with, an investment-related 
business or otherwise significantly 
limiting the person's 
investment-related activities; or 
(C) was found to have engaged in an act 
or a course of conduct which resulted 
in the issuance by the agency of an 
order to cease and desist the violation 
of the provisions of any 
investment-related statute or rule; or 
(3) Self-Regulatory Organization (SRO) 
proceedings in which the person: 

(A) was found to have caused an 
investment-related business to lose its 
authorization to do business; or 

(B) was found to have been involved in a 
violation of the SRO's rules and was 
the subject of an order by the SRO 
barring or suspending the person from 
membership or from association with 
other members, or expelling the 
person from membership; fining the 
person more than two thousand five 
hundred dollars ($2,500.00); or 
otherwise significantly limiting the 
person's investment-related activities. 

(c) The information required to be disclosed by 
Subparagraph (a)(17) shall be disclosed to clients 
promptly, and to prospective clients not less than 
48 hours prior to entering into any written or oral 
investment advisory contract, or no later than the 
time of entering into such contract if the client has 
the right to terminate the contract without penalty 
within five business days after entering into the 
contract. 

(d) For purposes of this Rule: 

(1) "Management person" means a person 
with power to exercise, directly or 
indirectly, a controlling influence over 
the management or policies of an 
investment adviser which is not a 
natural person or to determine the 
general investment advice given to 
clients; 

(2) "Found" means determined or 
ascertained by adjudication or consent 
in a final SRO proceeding, 
administrative proceeding, or court 
action; 

(3) "Investment-related" means pertaining 



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711 



PROPOSED RULES 



to securities, commodities, banking, 
insurance, or real estate [including, but 
not limited to, acting as or being 
associated with a dealer, investment 
company, investment adviser, 
government securities broker or dealer, 
municipal securities dealer, bank, 
savings and loan association, entity or 
person required to be registered under 
the Commodity Exchange Act (7 
U.S.C. 1 et seq.), or fiduciary]; 

(4) "Involved" means acting or aiding, 
abetting, causing, counseling, 
commanding, inducing, conspiring with 
or failing reasonably to supervise 
another in doing an act; and 

(5) "Self-Regulatory Organization" or 
"SRO" means any national securities or 
commodities exchange, registered 
association, or registered clearing 
agency. 

(e) For purposes of calculating the ten-year 
period during which events are presumed to be 
material under Paragraph (b), the date of a 
reportable event shall be the date on which the 
final order, judgment, or decree was entered, or 
the date on which any rights of appeal from 
preliminary orders, judgments, or decrees lapsed. 

(f) Compliance with this Rule shall not relieve 
any investment adviser from the obligations of any 
other disclosure requirement under the Act, the 
rules and regulations thereunder, or under any 
other federal or state law. 

Statutory Authority G.S. 78C- 18(b); 78C-30(a). 
****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the NC Dept. of the Secretary of 
State, Land Records Management Division intends 
to amend rules cited as 18 NCAC 8 . 0101 - . 0104, 
.0402, .0501, .0601 -.0603, .0701, .0801, .0803, 
.0903, .1002 - .1003, .1101, .1209, adopt .0105 
and repeal .0201 - .0209. 

1 he proposed effective date of this action is 
November 1 , 1994. 

1 he public hearing will be conducted at 1 .00 
p.m. on August 30, 1994 at the Archdale Building, 
5th Floor Hearing Room, 512 N. Salisbury Street, 
Raleigh, NC 27603. 



Keason for Proposed Action: 

18 NCAC 8 .0101 - .0104, .0402, .0501, .0601 - 

.0603, .0701, .0801, .0803, .0903, .1002 -.1003- 

To change the name of the Dept. from EHNR to 
Secretary of State; to change the name of the 
"program" to "Division"; to correct statute refer- 
ences from 143-345.6 to 147-54.3; to clarify what 
is "voluntary" in Rule .0103; and to make other 
technical clarifying changes. 
18 NCAC 8 .0105 - To establish definitions for 
terms used in Chapter 8 in Title 18 NCAC. 
18 NCAC 8 .0201 - .0209 - Definitions have been 
consolidated in Rule .0105 of this Chapter. 
18 NCAC 8 .1101 - To change the effective date of 
statewide implementation of indexing standards 
from July 1, 1993 to January 1 , 1995 per legisla- 
tive change to G.S. 161-22.3 in the 1993 General 
Assembly. 

18 NCAC 8 .1209 - To reduce the allowable hours 
from four to two for attendance at Society of 
Surveyors Chapter Meetings that will be credited 
toward NCPMA state recertification. 

Lsomment Procedures: Interested persons may 
present statements either orally or in writing at the 
public hearing, or in writing through September 
14, 1994 by mail addressed to Phil Stanley, Direc- 
tor, Land Records Management Division, NC 
Dept. of the Secretary of State, P.O. Box 27687, 
Raleigh, NC 27611. For copies of any information 
related to the hearing, call (919) 733-7006 or 
write to the aforementioned address. 

CHAPTER 8 - LAND RECORDS 
MANAGEMENT DIVISION 

SECTION .0100 - GENERAL 

.0101 PURPOSE 

The purpose of the Land Records Management 
Program Division is to encourage county govern- 
ments to utilize modern methods, techniques, 
equipment, and documentation which will improve 
the quality of public services with respect to land 
records and achieve a high degree of standardiza- 
tion throughout the state. The program provides 
technical assistance and grant funds for the im- 
provement of county land records. Since the funds 
available in any one year are sufficient to meet 
only a part of the total need, in making grants the 
state will place great emphasis on: 

(1) the creation of a more efficient standard- 
ized land record system; and 



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PROPOSED RULES 



(2) the willingness and ability of local gov- 
ernment units to meet their responsibili- 
ties through sound fiscal policies, cre- 
ative planning, and efficient operations 
and management. 

Statutory Authority G.S. 102-15; 147-54.3. 

.0102 FUNCTIONS 

The Land Records Management Program Divi- 
sion provides statewide coordination, technical 
advice, policy guidance, and financial assistance to 
county governments with respect to all records 
pertaining to land parcels. 

Statutory Authority G.S. 102-15 through 102-17; 
147-54.3. 

.0103 COUNTY PARTICIPATION 

Participation by county governments in the land 
records modernization program., as set forth in 
Sections .0100 through .1000 of this Chapter by 
county governments is entirely voluntary and it is 
initiated only by an action of the board of county 
commissioners. If a board of commissioners 
chooses to initiate a land records modernization 
program and a pplies for a grant from this Depart- 
ment, the a pplicant shall adhere to all rules and 
procedures pursuant to Sections .0100 through 
.1000 of this Chapter. 

Statutory Authority G.S. 102-16; 147-54.3. 

.0104 ADMINISTRATION 

Administration of the Land Records Management 
Program Division shall be in accordance with the 
administrative regulations rules prepared by the 
Secretary of Environment, Health, and Natural 
Resources State and made available to county 
governments from the Land Records Management 
Division ef- — Land — Resources , North Carolina 
Department of Environment, Health, and Natural 
Resources the Secretary of State . 

Statutory Authority G.S. 102-17; 147-54.3. 

.0105 DEFINITIONS OF TERMS 

The definitions in this Rule shall app ly to the 
terms used in this Chapter: 

(1) "Act" means the Act to Provide Assis- 
tance to Counties for Improvement of 
Land Records, Chapter 1099. 1977 N.C. 
Session Laws. 

(2) "A pplicant" means a board of county 
commissioners. 



(3) "Department" means the North Carolina 
Department of the Secretary of State. 

(4) "Division" means the Land Records 
Management Program established in G.S. 
147-54.3 and the statewide program for 
improvement of county land records. 

(5) "Effective Date of Receipt of Applica- 
tions" means the first day of the next 
quarter of the fiscal year (July 1 . October 
i, January i, April 1} following actual 
receipt of the a pplication in the Depart- 
ment. 

(6) "Grant Allotment" means a binding 
agreement to pay grant funds in a lump 
sum or in installments to an applicant in 
accordance with the terms of the 
agreement. For this purpose, allotments 
shall in no case exceed one dollar ($1 .00) 
for every dollar of local tax funds 
expended on the project by the County- 
Federal or other state funds available to 
the project will not be eligible as 
matching money under the state program. 

(7) "Inspection" means inspection or 
inspections of a project for which a grant 
has been made under the Act to 
determine compliance with applicable 
state and local laws and rules and other 
pertinent matters. 

(8) "Project" means the work or works 
described in the application for a state 
grant, and which is to be undertaken by 
the County if a state grant is awarded and 
other required funds are obtained. It 
does not include any significant 
expansion of the project described in the 
a pplication except as may be permitted 
under the provisions of Rule .0502 of 
this Chapter. 

Statutory Authority G.S. 102-15; 102-16; 102-17; 
147-54.3. 

SECTION .0200 - DEFINITIONS 

.0201 LIMITATION 

Definitions in this Section apply to the Land 
Records Management Program. 

Statutory Authority G.S. 102-15 through 102-17; 
143-345.6. 

.0202 ACT 

Act shall mean the Act to Provide Assistance to 
Counties — fef — Improvement — ef- — Land — Records, 



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PROPOSED RULES 



Chapter 1099, Session Laws 1977. 

Statutory Authority G.S. 102-15 through 102-17; 
143-345.6. 

.0203 DEPARTMENT 

Department — sbeH — mean — the — North — Carolina 
Department of Environment, Health, and Natural 
Resources. 

Statutory Authority G.S. 102-15 through 102-17; 
143-345.6. 

.0204 EFFECTIVE DATE OF 

RECEIPT OF APPLICATION 

Effective date of receipt of application shall mean 
the first day of the next quarter of the fiscal year 
(July 1, October 1, January 1, April 1) following 
actual receipt of the application in the Department 
of Environment, Health, and Natural Resources, 

Statutory Authority G.S. 102-15 through 102-17; 
143-345.6. 

.0205 GRANT ALLOTMENTS 

Grant allotments shall mean a binding agreement 
te — pay — grant — funds — m — a — lump — sua — ©f — m 
in s tallments, to an applicant in accordance with the 

term s — of the — agreement. ¥er — this — purpose, 

allotments shall in no case exceed one dollar for 
every dollar of local tax funds expended on the 
project by the county. — Federal or other s tate fund s 
available to the project will not be eligible as 
matching money under the state program. 

Statutory Authority G.S. 102-15; 143-345.6. 

,0206 INSPECTION 

Inspection shall mean inspection or inspections of 
a project for which a grant has been made under 
the act to determine compliance with applicable 
state and local laws and regulation s , and other 
pertinent matters. 

Statutory Authority G.S. 102-15 through 102-17; 
143-345.6. 

.0207 APPLICANT 
Applicant is a board of county commissioners. 

Statutory Authority G.S. 102-15 through 102-17; 
143-345.6. 

.0208 LAND RECORDS MANAGEMENT 
DTVISION 



Land Records Management Program shall mean 
the N.C. Land Records Management Program m 
established in G.S. 1 4 3 3 4 5.6 and the otatcwidc 
program for improvement of county land records 
established in G.S. 102 15, 102 16, and 102 17. 

Statutory Authority G.S. 102-15 through 102-17; 
143-345.6. 



.0209 PROJECT 

Project s hall mean the work or worlca described 
in the application for a s tate grant, and which is to 
be undertaken by the county if a state grant i s 
awarded and other required funds are obtained. It 
docs not include any significant expansion of the 
project described in the application except as may 
be permitted under the provi s ions of Rule .0502 of 
this Subchapter. 



Statutory Authority G.S. 102-15 through 102-17; 
143-345.6. 

SECTION .0400 - ELIGD3LE 
APPLICANTS 

.0402 QUALIFICATIONS 

No applicant shall be eligible for the award of a 
grant unless it demonstrates to the satisfaction of 
the Department of Environment, — Health, — es4 
Natural Resources that the following : 

(1) The applicant is a board of county 
commissioners; 

(2) The applicant has the financial capacity 
to provide its share of the project costs. 
To the extent that the costs are to be 
provided on a pay-as-you-go basis, the 
full amount indicated from this source 
shall be represented by cash on hand 
and/or cash expected to be included in 
the applicant's annual budget for the 
years in which payments under the 
project contract will be due. To the 
extent that borrowed funds are 
anticipated, the applicant shall certify that 
the additional debt, together with the 
applicant's existing debt, is within the 
debt limitation provisions of the general 
laws of the state. In making this 
determination, the Department ef 

Environm ent^ Health, and Natural 

Resources may, in its discretion, seek the 
comments of the secretary of the local 
government commission when the 
applicant proposes the use of borrowed 
funds-: i and 



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PROPOSED RULES 



(3) The applicant has substantially complied 
or will substantially comply with all 
applicable laws, rules, rcgulationo, and 
ordinances, state and local. 

Statutory Authority G.S. 102-15; 102-17; 147- 
54.3. 

SECTION .0500 - FUNDING 

.0501 GRANT LIMITATIONS 

Grants shall be made in such amount as the 
Department of Environment, Health, and Natural 
Resources shall deem necessary or appropriate 
under the circumstances of the grant application, 
but in no event shall any grant award exceed one 
dollar for every dollar of local tax funds expended 
on the project by the county. 



Statutory Authority G.S. 
54.3. 



102-15; 102-17; 147- 



SECTION .0600 - APPLICATIONS 

.0601 SUBMITTING APPLICATIONS 

Applications for project grants for improvement 
or expansion of land records management systems 
shall be submitted to the land records management 
s ection, Division of Land Resources, Department 
of Environment, Health, and Natural Resources on 
the Land Records Management Grant Form (Fo raa 
AA 16) Application . Applications and all 
supporting documentation, assurances, and other 
information called for in the application shall be 
submitted in such number and in such form as 
specified in the application. 



Statutory Authority G.S. 102-15; 
54.3. 



102-17; 147- 



.0602 INSUFFICIENT INFORMATION 

Any application which does not contain 
information sufficient to permit the Department ef 
Environment, Health, and Natural Resources to 
determine either the eligibility of the applicant or 
the assignment of a priority shall not be deemed as 
received until such information is furnished by the 
applicant to the Department of Environment, 
Health, and Natural Resources . 

Statutory Authority G.S. 102-15; 102-17; 147- 
54.3. 

.0603 ADDITIONAL INFORMATION 

An applicant shall furnish information in addition 



to, or supplemental to, the information contained 
in its application and supporting documentation 
upon request by the Department of Environment, 
Health, and Natural Rcsourceo . 

Statutory Authority G.S. 102-15; 102-17; 147- 
54.3. 

SECTION .0700 - DETERMINATION OF 
ELIGIBILITY 

.0701 ELIGD3LE APPLICATIONS 

(a) Each application, and supporting documents, 
shall be reviewed by the Department ef 
Environment, Health, and Natural Resources to 
determine if it contains all required information 
and meets grant eligibility requirements. 

(b) Each applicant will be notified by the 
Department of Environment, Health, and Natural 
Resources within 30 days of the actual date of 
receipt of the application, of its eligibility for 
consideration for a project grant award. 

(c) Eligible applications will be processed for 
priority determination for a grant award in 
accordance with these procedures. 

Statutory Authority G.S. 102-15; 102-17; 147- 
54.3. 

SECTION .0800 - CRITERIA FOR 

EVALUATION OF ELIGD3LE 

APPLICATIONS 

.0801 PRIORITIES 

(a) Each eligible application shall be assigned a 
priority for grant funds through use of the point 
system outlined in this Section. 

(b) In determining the priority to be assigned to 
each eligible application, the Department ©f 
Environment, Health, and Natural Resources will 
give consideration to the following factors: 

(1) Primary consideration shall be given to 
those counties with long-range plans for 
the modernization of their land records. 

(2) Consideration shall be given to those 
counties which demonstrate a 
willingness to cooperate with all county 
offices involved with land records. 

(3) Consideration shall be given to those 
counties which have allocated funds for 
the modernization of land records. 



Statutory Authority G.S. 
54.3. 



102-15; 102-17; 147- 



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PROPOSED RULES 



.0803 POINT SYSTEM 

Within each category in Rule .0802 of this 
Section, priority points will be assigned in the 
amounts indicated in this Rule for the following 
factors: 

(1) Comprehensive long range county plan 
for modernization of land records 
(maximum -- 15 points); 

(2) Establishment of an office of land records 
manager (maximum — 15 points); 

(3) Quality and detail of project description 
(maximum -- 10 points); 

(4) Fiscal responsibility of the applicant 
(maximum — 30 points): 

(a) adequate current appropriations 
provided (maximum — 15 points); 

(b) bond issue or other financing provided 
(maximum — 15 points); 

(c) budgetary appropriations for 
continuation and maintenance of land 
records system provided (maximum — 
15 points); 

(5) Status of Program. Points will be 
assigned in the following categories for 
completion of the tasks indicated 
according to specifications available from 
the Division ef- — Land — Resources, 
Department of Environment, Health, and 
Natural — Resources (maximum — 30 
points): 

(a) Aerial photography (maximum — five 
points); 

(b) Base maps (maximum — five points); 

(c) Cadastral maps (maximum - five 
points); 

(d) Parcel Identifiers. For each of the 
offices listed below which utilize 
assigned parcel identifiers, points will 
be awarded as follows: three points for 
each of the first two offices and one 
point for each additional office 
(maximum -- 10 points): 

(i) register of deeds, 
(ii) tax supervisor, 
(iii) clerk of court, 
(iv) county planner, 
(v) building inspector, 
(vi) other identified; 

(e) Automated system implemented 
(maximum -- five points); 

(f) One point shall be awarded if applicant 
has not received prior funding under 
this program; 

(g) Administrative Discretion. Points may 
be awarded at the discretion of the 



secretary of the department for favor- 
able circumstances not covered by the 
criteria in other parts of this Rule (max- 
imum — five points). 

Statutory Authority G.S. 102-15; 102-17; 147- 
54.3. 

SECTION .0900 - GRANT AWARDS 



.0903 WITHDRAWAL OF GRANT OFFER 

Failure of an applicant to arrange for necessary 
financing of the proposed projects, to award a 
contract (if necessary) for all or part of the pro- 
posed project and to fully execute a contract with 
the department for the payment of grant funds, 
within the fiscal quarter following the quarter in 
which the grant offer is made shall be sufficient 
cause for withdrawal of the grant offer. Prior to 
withdrawal of a grant offer, the department shall 
give due consideration to any extenuating circum- 
stances presented by the applicant as reasons for 
such failure and the grant offer may be extended 
for an additional period of time if, in the judgment 
of the Department of Environment, Health, and 
Natural Resources , such an extension is justified. 

History Note: Statutory Authority G. S. 102-15; 
102-17; 147-54.3. 

SECTION .1000 - PAYMENT OF 
GRANTS 

.1002 INSPECTION OF PROJECT 

(a) A project for which a grant has been made 
may be inspected by the land records management 
offic e Division to determine the degree of comple- 
tion of the project, compliance with applicable 
laws, rules and regulations , and other pertinent 
matters. 

(b) Inspections shall be made by qualified 
personnel of the land records management office 
Division , by qualified professional engineers, or 
by other qualified state personnel who are ap- 
proved by the Department of Environment, Health, 
and Natural Rcsourcca to make such inspection(s). 
If a federal agency makes an inspection of the 
project, such inspection may, at the sole discretion 
of the department, be accepted in lieu of an inspec- 
tion by qualified state personnel. 

Statutory Authority G.S. 102-15; 102-17; 147- 
54.3. 

.1003 AUDIT OF PROJECTS 



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(a) An audit shall be required for each project 
for which a state grant has been made. 

(b) If a federal agency making a grant to a 
project for which a state grant is made is required 
to make an audit or audits of the project, such 
audits may, at the discretion of the Department ef 
Environment, Health, and Natural Rcoourceo , be 
accepted in lieu of audits by qualified state person- 
nel or qualified independent auditors as approved 
by the local government commission. Matching 
grant funds will not be used to carry out audits. 

Statutory Authority G.S. 102-15; 102-17; 147- 
54.3. 

SECTION .1100 - MINIMUM STANDARDS 
FOR INDEXING LAND RECORDS 



procedures to be used by all Registers of Deeds 
for indexing land records. Copies of the Standards 
may be viewed or obtained by contacting the Land 
Records Management Division, N.C. Department 
of the Secretary of State, P.O. Box 27687, Ra- 
leigh, NC 27611, (919) 733-7006. The cost for 
receiving a copy of the standards will be twenty 
cents per page ($.20) to cover reproduction and 
postage. 

Statutory Authority G.S. 147-37; 147-37; 147-54.3 
(bl); 150B-21. 6; 161-22.3. 

SECTION .1200 - MINIMUM 

CERTIFICATION REQUIREMENTS 

FOR LOCAL GOVERNMENT 

PROPERTY MAPPERS 



.1101 INTRODUCTION AND PURPOSE 

(a) The Registers of Deeds of North Carolina 
are dedicated to sound management practices, 
progressive land records modernization efforts, 
and the best possible assistance to the citizens who 
depend on their services. Toward this end, the 
N.C. Association of Registers of Deeds, in con- 
junction with the Real Property Section of the 
N.C. Bar Association, developed indexing stan- 
dards which shall be administered statewide begin- 
ning J«ly-4 T 4993 January L 1995. The standards 
will bring uniformity to the methods used for 
indexing land records documents in each Registers 
of Deeds office and will ultimately benefit every 
person who uses a Register of Deeds facility in 
conducting any phase of a land parcel and title 
search. 

(b) The Land Records Management Division, 
hereinafter referred to as "Division", is responsible 
for encouraging local and county governments to 
utilize modern methods, techniques, equipment, 
and documentation which will improve the quality 
of public service with respect to land records and 
to achieve a high degree of standardization 
throughout the State. The Division also provides 
technical assistance to local and county 
governments in their efforts to further enhance 
their abilities to provide the best possible service 
to their public. 

(c) The Indexing Standards, hereinafter referred 
to as "Standards", published in August 1990 and 
approved by the N.C. Association of Registers of 
Deeds in September 1990, and by the Real 
Property Section of the N.C. Bar Association in 
November 1990, are hereby incorporated by 
reference including any subsequent amendments 
and editions. The Standards contain uniform 



.1209 COURSES OF INSTRUCTION FOR 
RECERTTFICATION 

(a) The courses of instruction with correspond- 
ing hours that will be credited toward recertifica- 
tion are as follows: 

COURSE HOURS 

(1) AM/FM International 24 hours 

(2) GIS/LIS 24 hours 

(3) IAAO Course #6 24 hours 

(4) IOG Listing & Assessing 16 hours 

(5) National URISA 24 hours 

(6) NC ASPRS 8 hours 

(7) NC GIS Conference 8 hours 

(8) NC Surveyors Conference 16 hours 

(9) NC URISA 4 hours 

(10) NCPMA Fall Conference 16 hours 

(11) NCPMA GIS Conference 8 hours 

(12) NCPMA Mapping School 24 hours 

(13) NCPMA Regional 

Workshops 8-16 hours 

(14) Society of Surveyors Chapter Meet- 
ings 4 2 hours (No 

more than 12 hours 

credit shall be 

allowed for this 

course in a two year 

period.) 

(15) Surveyors Institute 24 hours 

(16) URISA Workshop 8-16 hours 

(b) An applicant shall complete at least 24 hours 
of the courses listed in Paragraph (a) of this Rule 
every two years to be considered for recertifica- 
tion. The credit hours may include a combination 
of courses equalling 24 hours or one course equal- 
ling 24 hours. 

(c) All accrued credit hours shall terminate with 
the certification renewal. 



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Statutory Authority G.S. 147-54. 4(b); 1 47-54. 4(c); 
147-54. 4(e). 

TITLE 19A - DEPARTMENT OF 
TRANSPORTATION 

l\otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Transportation intends to amend rules cited as 19 A 
NCAC 2B .0217; 2D .0801 and .0816. 

1 he proposed effective date of this action is 
December 1, 1994. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): A demand for a public hearing must be 
made in writing and mailed to Emily Lee, Depart- 
ment of Transportation, P.O. Box 25201, Raleigh, 
NC 27611. The demand must be received within 
15 days of this Notice. 

ixeason for Proposed Action: 
19 A NCAC 2B .0217- This rule change will allow 
municipalities to keep All America City signs in 
place for longer than the one year of designation 
if the year is displayed. 

19 A NCAC 2D .0801 - The changes will modify 
the way affiliated firms, one or more companies 
owned by the same corporate officers, are pre- 
qualified and requalified to bid on highway pro- 
jects. 

19 A NCAC 2D .0816 - The changes will modify 
the way affiliated firms are disqualified from 
bidding on highway construction projects. 

Ksomment Procedures: Any interested person may 
submit written comments on the proposed rules by 
mailing the comments to Emily Lee, Department of 
Transportation, P.O. Box 25201, Raleigh, NC 
27611, within 30 days after the proposed rules are 
published or until the date of any public hearing 
held on the proposed rules, whichever is longer. 

CHAPTER 2 - DIVISION OF HIGHWAYS 

SUBCHAPTER 2B - HIGHWAY PLANNING 

SECTION .0200 - TRAFFIC ENGINEERING 

.0217 ALL AMERICA CITY SIGNS 

(a) Primary and Secondary Systems. Signs on 



primary and secondary system roads may include 
the All America City Shield. The actual design of 
the sign to be used must be submitted to the 
Manager of Traffic Engineering for approval. 
Only one such sign may be erected on any ap- 
proach to the municipality and that sign shall be 
erected at or near the city limit. 

(b) Since the All America City award is for a 
period of one year only, these signs shall be 
removed after they have been in place for a period 
of one year. The erection, maintenance, and 
removal of these signs shall be at no cost to the 
Department of Transportation. Municipalities may 
display the All America City sign for more than 
one year if the year in which the award was 
received is displayed within or directly beneath the 
logo. 

(c) Interstate System. The use of the All Ameri- 
ca City Shield will not be permitted on the inter- 
state. However, a standard interstate type sign, 
with the message ALL AMERICA CITY, consist- 
ing of white letters on a green background may be 
permitted beneath the standard city limit sign. If 
this is not possible, a sign with the message "CITY 
NAME - ALL AMERICA CITY" may be erected 
on its own supports provided this can be done in 
conformance with the "Manual on Uniform Traffic 
Control Devices" and the latest safety standards. 

(d) Signs erected on the interstate must have 
prior approval of the Department of Transportation 
and must be located and erected under the supervi- 
sion of Department of Transportation personnel. 
They must be removed one year after their erec- 
tion unless the city should receive the award for 
the second consecutive year. Their erection, 
maintenance, and removal must be at no cost to 
the Department of Transportation, exclusive of the 
necessary supervision involved. 

Statutory Authority G.S. 136-18(5); 136-30. 

SUBCHAPTER 2D - HIGHWAY 
OPERATIONS 

SECTION .0800 - PREQUALIFICATION: 

ADVERTISING AND BIDDING 

REGULATIONS 

.0801 PREQUALIFYING TO BID: 
REQUALIFICATION 

(a) In order to ensure that contracts are awarded 

to responsible bidders, prospective Pro s pective 

bidders shall prequalify with the Department. The 

requirements for prequalification are as follows: 

(1) Applicant must submit a completed 



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PROPOSED RULES 



NCDOT Experience Questionnaire 
along with any additional supporting 
information requested by the Depart- 
ment . 

(2) Applicant must demonstrate that he has 
sufficient ability and experience in 
related highway construction experience 
projects to perform the work specified 
in the contract (type and dollar value of 
prcvioua contrncta) NCDOT contracts, 
including the type and dollar value of 
previous contracts . 

(3) Applicant must demonstrate a history of 
successful performance and completion 
of projects in a timely manner, subject 
to the contractual time adjustments. 

(4) Applicant must demonstrate the finan- 
cial ability to furnish bonds as specified 
in G.S. 44A-26. 

(5) Applicant must demonstrate sufficient 
available equipment to perform highway 
construction contracts in a timely man- 
ner. 

(6) Applicant must demonstrate sufficient 
available experienced personnel to 
perform highway construction 
contracts. The identities and 
qualifications of both Both management 
and labor work force shall be addressed 
provided . 

(7) Applicant must provide names and 
addresses of persons for whom the firm 
has performed related type work. 
Responses from the references must be 
on Department of Transportation forms 
and must be received by the 
Department prior to evaluating the 
request for prequalification. 

(8) A pplicant must provide any information 
requested concerning the corporate and 
operational management structure of the 
company, the identity of persons or 
entities owning stock or other equity 
interest in the company, and the rela- 
tionship between the a pplicant and any 
other company prequalified with the 
Department or a pplying for pre- 
qualification. 

Any prospective bidder, not prequalified, may 
request a NCDOT Experience Questionnaire form 
from the State Highway Construction and Materi- 
als Engineer, Division of Highways, Department 
of Transportation, P.O. Box 25201, Raleigh, NC 
27611. The Experience Questionnaire form must 
be completed in its entirety and signed by an 



officer of the firm; the officer's signature shall be 
notarized. In addition to submitting the Experi- 
ence Questionnaire form as set forth in this Rule, 
the prospective bidder shall submit supporting 
information in a format of his/her choosing to 
address the requirements listed in this Rule. All 
required statements and documents shall be filed 
with the State Highway Construction and Materials 
Engineer by the prospective bidder at least two 
weeks prior to the date of opening of bids. A bid 
shall not be opened unless all prequalification 
requirements have been met by the bidder and 
have been found to be acceptable by the Chief 
Engineer-Operations. 

(b) Upon a determination by the Department that 
all prequalification requirements have been met, 
the a pplicant shall be assigned a Prequalification 
Number. This Prequalification Number shall 
thereafter be assigned to aH a pplicants for pre- 
qualification or requalification which the Depart- 
ment determines are under sufficient common 
ownership and management control to warrant 
prequalification as a single entity. This determina- 
tion by the Department shall be based on the 
information submitted with the Experience Ques- 
tionnaire and any other information obtained by 
the Department. 

(c) {b) Bidders shall comply with all applicable 
laws regulating the practice of general contracting 
as contained in G.S. 87. 

(d) (e) All bidders must requalify annually. To 
requalify, the prospective bidder must submit a 
completed Experience Questionnaire form, accept- 
able to the State Highway Construction and Mate- 
rials Engineer, on or before the anniversary date 
of the original prequalification. Experience Ques- 
tionnaire forms shall be furnished approximately 
30 days prior to the anniversary date and must be 
completed and executed in the same manner as the 
original form. 

{d) — After reviewing the items referenced in 
Paragraph (a) of this Rule, the State Highway 
Construction and Materials Engineer shall notify 
the prospective bidder in writing of the response to 
his request for prequalification. 

Statutory Authority G.S. 136-18(1); 136-28.1; 
136-44.1; 136-45; 143-350(f). 

.0816 DISQUALIFICATION OF BIDDERS 

(a) The Department may disqualify Any one of 
the following — causes — may — be justification — fef 
disqualifying a contractor from further bidding 
until he has applied for and have has been re- 
qualified in accordance with Rule .0801 of this 



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719 



PROPOSED RULES 



Section for any of the following reasons : 

(1) unsatisfactory progress in accordance 
with the terms and conditions of 
existing or previous contracts as 
specified in Article 108-8 or Article 
105-7 of the Standard Specifications for 
Roads and Structures. 

(2) being declared in default in accordance 
with Article 108-9 of the Standard 
Specifications for Roads and Structures. 

(3) uncompleted contracts which, in the 
judgement of the Chief Engineer^ may 
hinder or prevent the prompt timely 
completion of additional work if 
awarded. 

(4) failure to comply with prequalification 
requirements. 

(5) the submission of more than one bid for 
the same work from contract by an 
individual, partnership, joint venture, 
or corporation prequalified under the 
same ef different nameo Pre- 
qualification Number . 

(6) evidence of collusion among bidders; 
each participant in such collusion will 
be disqualified. 

(7) failure to furnish a non-collusion affida- 
vit upon request. 

(8) failure to comply with Article 108-6 of 
the Standard Specifications for Roads 
and Structures. 

(9) failure to comply with a written order 
of the Engineer as provided in Article 
105-1 of the Standard Specifications for 
Roads and Structures or oral directives 
given by the Department's project 
personnel , if in the judgment of the 
Chief Engineer such failure is of suffi- 
cient magnitude to warrant disqualifica- 
tion. 

(10) failure to satisfy the Disadvantaged 
Business Enterprise requirements of the 
project special provisions. 

(11) the Department has not received the 
amount due under a forfeited bid bond 
or under the terms of a performance 
bond . 

(12) failure to submit within 60 days after 
being requested by the Engineer, or the 
s ubmi s sion of false information in, the 
documents required by Article 109 9 of 
the Standard Specification s for Roads 
and Structures the documents required 
by Article 109-9 of the Standard Speci- 
fications for Roads and Structures 



within 60 days after being requested by. 
the Engineer, or the submission of false 
information . 
(13) failure to return overpayments as direct- 
ed by the Engineer. 
(b) Upon a determination that a contractor 
should be disqualified for one or more of the 
reasons listed in Paragraph (a) of this Rule, the 
Department may, in its discretion, remove all 
entities prequalified under the same Pre- 
qualification Number. 

Statutory Authority G.S. 136-18(1); 136-28.1. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARDS 

CHAPTER 34 - BOARD OF 
MORTUARY SCDZNCE 

l\otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Mortuary Science intends to amend rules cited as 
21 NCAC 34A .0126, 34B .0108, .0125, .0308, 
.0401, .0405, .0509, .0609 and 34D .0303; and 
adopt 34B .0212. 

1 he proposed effective date of this action is 
November 1, 1994. 

1 he public hearing will be conducted at 11:00 
a.m. on September 16, 1994 at the Board Room, 
801 Hillsborough Street, Raleigh, NC 27603. 

Iveason for Proposed Action: 
21 NCAC 34A .0126 - To change the reference to 
the name of the Boards administrative officer from 
Executive Secretary to Executive Director. 
21 NCAC 34B .0108 - To change the reference to 
the name of the Board's administrative officer from 
Executive Secretary to Executive Director. 
21 NCAC 34B .0125 - To change the reference to 
the name of the Board's administrative officer from 
Executive Secretary to Executive Director. 
21 NCAC 34B .0212 - To establish a procedure 
for disabled examination applicants to request 
special accommodations to take the examination. 
21 NCAC 34B .0308 - To change the reference to 
the name of the Board's administrative officer from 
Executive Secretary to Executive Director. 
21 NCAC 34B .0401 - To require that applica- 
tions for approval of continuing education courses 



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PROPOSED RULES 



be submitted to the Board at least 30 (was 15) 
days prior to date of enrollment. 
21 NCAC 34B .0405 - To require that applica- 
tions/or approval of continuing education courses 
be submitted to the Board at least 30 (was 15) 
days prior to date of enrollment. 
21 NCAC 34B .0509 - To change the reference to 
the name of the Board's administrative officer from 
Executive Secretary to Executive Director. 
21 NCAC 34B .0609 - To change the reference to 
the name of the Board's administrative officer from 
Executive Secretary to Executive Director. 
21 NCAC 34D .0303 - To provide that the Board 
shall approve, but no longer prepare, certificates 
of performance and similar claim forms. 

Csomment Procedures: Interested persons may 
present statements, orally and in writing, at the 
public hearing and in writing prior to the hearing 
by mail addressed to the NC Board of Mortuary 
Science, P.O. Box 27368, Raleigh, NC 27611- 
7368. 

SUBCHAPTER 34A - BOARD 
FUNCTIONS 

SECTION .0100 - GENERAL PROVISIONS 

.0126 COMPLAINTS; PRELIMINARY 
DETERMINATIONS 

(a) A person who believes that any person, firm 
or corporation is in violation of any provision of 
G.S. 90, Article 13A, 13C or 13D, or Title 21, 
Chapter 34, of the North Carolina Administrative 
Code, may file a written complaint with the 
Board's staff. If the accused is subject to the 
jurisdiction of the Board, the complaint shall be 
handled pursuant to this Rule. 

(b) A complaint shall be handled initially by the 
Board's Executive S e cr e tary Director , Director of 
Preneed Regulation or their staff designees, who 
may dismiss it as unfounded, frivolous or trivial. 
Complaints against persons subject to the Board's 
jurisdiction pursuant to G.S. 90, Article 13A and 
13C, shall be handled by the Executive Secr e tary 
Director or staff designated by him or her, and 
complaints against persons subject to the Board's 
jurisdiction pursuant to G.S. 90, Article 13D, shall 
be handled by the Director of Preneed Regulation 
or staff designated by him or her. 

(c) Unless the complaint is dismissed pursuant to 
Paragraph (b) of this Rule, the Executive Soorotary 
Director . Director of Preneed Regulation or their 
staff designees shall notify the accused of the 



complaint in writing. Such notice shall be sent by 
certified mail, return receipt requested; shall state 
the allegations as contained in the complaint, or 
may enclose a copy of the complaint; and shall 
contain a request that the accused submit a 
response in writing within 10 days from the date 
the notice of the complaint is received by the 
accused. 

(d) If the accused admits the allegations, and if, 
in the opinion of the Executive Secretary Director . 
Director of Preneed Regulation or their staff 
designees, the matter does not merit review by the 
Board's disciplinary committee, the Executive 
Secretary Director , Director of Preneed Regulation 
or their staff designees shall accept the admission 
of guilt and shall acknowledge the admission in a 
letter to the accused. 

(e) If the accused admits the allegations, and if, 
in the opinion of the Executive Secretory Director , 
Director of Preneed Regulation or their staff 
designees, the matter merits review by the Board's 
disciplinary committee, the Executive Secretary 
Director . Director of Preneed Regulation or their 
staff designees shall refer the matter to the 
committee. After reviewing the allegations and 
response, the committee shall make a preliminary 
determination of the charges and shall recommend 
to the Board which of the actions in Paragraph (h) 
of this Rule should be taken. 

(f) If the accused does not respond to or denies 
the allegations, the Board's Executive Secretary 
Director , Director of Preneed Regulation or their 
staff designees shall investigate the allegations, and 
they may dismiss the complaint as unfounded, 
frivolous or trivial, or may refer the complaint, 
response, if any, and any other available evidence 
to the Board's disciplinary committee for review. 
From such review, the committee shall make a 
preliminary determination and shall recommend to 
the Board which of the actions in Paragraph (h) of 
this Rule should be taken. 

(g) The complaint, response, if any, other 
evidence and disposition of each case shall be 
placed in a permanent file of the accused. When 
a second complaint is filed against the accused 
during a period of twelve months, or a third 
complaint is filed against the accused during any 
period of time, the Executive Secretary Director , 
Director of Preneed Regulation or their staff 
designees shall present the file to the disciplinary 
committee for a review. From such review, the 
committee shall make a preliminary determination 
of the new complaint and shall recommend to the 
Board which of the actions in Paragraph (h) of this 
Rule should be taken. 



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PROPOSED RULES 



(h) In accordance with Paragraphs (e) through 
(g) of this Rule, the disciplinary committee shall 
review the complaint and the file, if applicable, 
shall make a preliminary determination, and shall 
recommend to the Board that one of the following 
actions be taken: 

(1) that the complaint be dismissed as 
unfounded, frivolous or trivial; 

(2) that, in the case of an alleged violation 
of G.S. 90, Article 13 A, the case be 
compromised pursuant to G.S. 
90-2 10.25(e)(1) or that it be set for a 
contested case hearing in accordance 
with G.S. 150B, Article 3A, and the 
rules of the Board; 

(3) that, in the case of an alleged violation 
of G.S. 90, Article 13C, the case be set 
for a contested case hearing in accor- 
dance with G.S. 150B, Article 3A, and 
the rules of the Board; or 

(4) that, in the case of an alleged violation 
of G.S. 90, Article 13D, the case be set 
for a contested case hearing before an 
administrative law judge, as provided 
by G.S. 90-2 10. 69(e). 

(i) The Board may accept or reject, in whole or 
in part, the recommendations of the disciplinary 
committee. 

Statutory Authority G.S. 90-210. 23(a); 90- 
210.25(e); 90-210. 43(f), (g); 90-210. 50(a); 90- 
210.69. 

SUBCHAPTER 34B - FUNERAL 
SERVICE 

SECTION .0100 - RESIDENT 
TRAINEES 

.0108 TRAINEE POCKET CERTIFICATE 

Form BMS-11 is the resident trainee pocket 
certificate. It is used for certifying that the holder 
thereof is entitled to practice as a resident trainee. 
It contains space for the date, name of the trainee, 
field of traineeship, expiration date, name of the 
licensed supervisor and the signature of the 
Executive Secretary Director of the Board. 



Statutory Authority G. S. 
90-210.25(a)(4); 150B-11(1). 



.0125 



90-21 0.23 (a); 



MORTUARY SCIENCE 
STUDENT PERMIT CARD 

Form BMS-24 is the mortuary science student 
permit card. It is used for indicating that the 



holder thereof is enrolled in a mortuary science 
college in North Carolina and that, while enrolled, 
is permitted to participate in activities of funeral 
service, under supervision, for the purpose of 
instruction. It contains the name of the student, 
number of the card, and spaces for the signatures 
of the student and the Executive Secretary Director 
or other designated agent of the Board. 

Statutory Authority G.S. 90-21 0.23(a); 90-210.29; 
150B-11(1). 

SECTION .0200 - EXAMINATIONS 

.0212 DISABILnTES OF APPLICANTS 
FOR EXAMINATIONS 

A pplicants for examinations shall inform the 
Board in writing, with their applications, if they 
have a disability which requires a special 
accommodation to take the examination- 
Applicants shall state the nature of the disability 
and the type of accommodation requested. The 
Board may require proof of the disability. 

Statutory Authority G.S. 9O-210.23(a); 90- 
21 0.25 (a)(1), (2), (3). 

SECTION .0300 - LICENSING 

.0308 RENEWALS: NOTICES 

The Executive Secretary Director of the Board 
shall, on or about December 1 of each year, mail 
to each licensee, to each holder of a funeral 
establishment permit and to each holder of a 
courtesy card a written notice that said license, 
permit or courtesy card shall expire as provided by 
law unless renewed. 

Statutory Authority G. S. 90-210. 23(a); 150B-1 1 (1). 

SECTION .0400 - CONTINUING 
EDUCATION 

.0401 ESTABLISHMENT AND 

APPROVAL OF COURSES 

The Board shall cause at least five hours of 
continuing education courses to be offered to the 
licensees annually, either directly or through other 
organizations or persons procured for such 
purpose. The Board shall mail to each licensee for 
whose benefit the course is offered, at least 15 
days prior to the date of enrollment, notice of the 
course and the amount of any registration fee to be 
charged. The Board may approve other courses, 
provided that descriptions of such courses are 



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PROPOSED RULES 



submitted to the Board at least +5 30 days prior to 
the date of enrollment. No course shall be 
approved unless the Board finds that the course 
will satisfy the purposes set forth in G.S. 
90-210. 25(a)(5). All courses shall be established, 
and notices thereof given, by license category; and 
registration must be open to all persons in the 
license category. 

Statutory Authority G.S. 90-210. 23(a); 
90-210. 25(a)(5); 150B-11(1). 

.0405 APPLICATION FORM FOR 
APPROVAL OF COURSE 

Form BMS-42 is the application for approval of 
a course of continuing education. It is used for 
making application for board Board approval of a 
course for continuing education credit. It contains 
space for the date, name of the organization or 
person making the application, description of the 
course, name and credentials of the instructor, and 
a statement by the applicant of how the course will 
aid the licensee in serving the public. The form 
must be filed with the Board, when making 
application, at least 44 30 days prior to the date of 
enrollment established for the course. 

Statutory Authority G.S. 90-210. 23(a); 
90-21 0.25 (a)(5); 150B-11(1). 

SECTION .0500 - OUT-OF-STATE 
LICENSEES 

.0509 COURTESY CARD FORM 

Form BMS-38 is the courtesy card. It is used 
for certifying that the holder thereof is entitled to 
practice in North Carolina in the limited manner 
prescribed by G.S. 90-210. 25(b)(3). It contains 
the name and address of the holder, the number of 
the card, the name of the license category, 
expiration date, the signature of the Executive 
S ecretary Director or other designated agent of the 
Board, a summary of the privileges permitted 
under the courtesy card and space for the signature 
and license number of the person to whom the 
card is issued. 

Statutory Authority G.S. 90-210. 23(a); 
90-210.25(b)(3); 150B-11(1). 

SECTION .0600 - FUNERAL 
ESTABLISHMENTS 



Form BMS-19 is the funeral establishment 
permit. It is used for certifying that the holder 
thereof is registered with the Board as a funeral 
establishment. It contains the name of the 
establishment, the signatures of the President and 
Executive Secretary Director of the Board and the 
date. 

Statutory Authority G.S. 90-210. 23(a); 
90-21 0.25(d); 150B-11(1). 

SUBCHAPTER 34D - PRENEED 
FUNERAL CONTRACTS 

SECTION .0300 - OPERATIONS 

.0303 CERTIFICATE OF PERFORMANCE 

(a) The certificate of performance or similar 
claim form as required by G.S. 90-210. 64(a) shall 
be a form as prepared approved by the Board and 
shall require the following information: the 
names, addresses and preneed funeral establish- 
ment license numbers of the performing funeral 
establishment and the contracting funeral establish- 
ment; the name of the deceased beneficiary of the 
preneed funeral contract; the date of death and the 
county where the death certificate was or will be 
filed; the invoice amount; certification that the 
contract was or was not performed in whole or in 
part and how the funds will be applied; the name 
and address of the financial institution where the 
preneed trust funds are deposited and the trust 
account or certificate number; the name and 
address of the insurance company which issued the 
prearrangement insurance policy and the policy 
number; and the amount and the date of the pay- 
ment by the financial institution or insurance 
company and to whom paid. 

(b) The form shall be completed by each funeral 
establishment performing any services or providing 
any merchandise pursuant to the preneed funeral 
contract, or, if none are performed or provided, by 
the contracting funeral establishment. The form 
shall be presented to the financial institution or 
insurance company for payment. Within 10 days 
following its receipt of payment, any funeral 
establishment which is required to complete the 
form shall mail a copy to the Board. 



Statutory Authority G. S. 
210.64(a); 90-210.68. 



90-210.69(a); 90- 



.0609 FUNERAL ESTABLISHMENT 
PERMIT FORM 



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723 



PROPOSED RULES 



****************** 
CHAPTER 36 - BOARD OF NURSING 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Nursing intends to amend rule cited as 21 NCAC 
36 .0226. 

1 he proposed effective date of this action is 
December 1, 1994. 

1 he public hearing will be conducted at 1:00 
p.m. on September 22, 1994 at the Greenville 
Hilton Inn, 207 SW Greenville Boulevard, 
Greenville, N. C. 

fteason for Proposed Action: lb clarify the 
language for the legal scope of nurse anesthesia 
practice. 

Comment Procedures: Any person wishing to 
present oral testimony relevant to proposed rule 
may register at the door before the hearing begins 
and present hearing officer with a written copy of 
testimony. Written comments concerning this 
amendment must be submitted by September 16, 
1994, to: North Carolina Board of Nursing, P.O. 
Box 2129, Raleigh, NC 27602, ATTN: Jean H. 
Stanley, APA Coordinator. 

Editor's Note: This Rule was filed as a 
temporary rule effective July 25, 1994 for a 
period of 180 days or until the permanent rule 
becomes effective, whichever is sooner. 

SECTION .0200 - LICENSURE 

.0226 NURSE ANESTHESIA PRACTICE 

(a) Only those registered nurses who meet the 
qualifications as outlined in Paragraph (b) of this 
Rule may perform nurse anesthesia activities 
outlined in Paragraph (c) of this Rule. 

(b) Qualifications and Definitions: 

(1) The registered nurse who completes a 
program accredited by the Council on 
Accreditation of Nurse Anesthesia 
Educational Programs, is credentialed 
as a certified registered nurse 
anesthetist by the Council on 
Certification of Nurse Anesthetists, and 



who maintains recertification through 
the Council on Recertification of Nurse 
Anesthetists, may perform nurse 
anesthesia activities in collaboration 
with a physician, dentist, podiatrist, or 
other lawfully qual ■* health care 
provide^ but may not scribe a medi- 
cal treatment regimen jt make a medi- 
cal diagnosis except under the supervi- 
sion of a licensed physician . 

(2) The graduate nurse anesthetist is a 
registered nurse who has completed a 
program accredited by the Council on 
Accreditation of Nurse Anesthesia 
Educational Programs, is awaiting 
initial certification by the Council on 
Certification of Nurse Anesthetists and 
is listed as such with the Board of 
Nursing. The graduate nurse anesthe- 
tist may perform nurse anesthesia activ- 
ities under the supervision of a certified 
registered nurse anesthetist, physician, 
dentist, podiatrist, or other lawfully 
qualified health care provider provided 
that initial certification is obtained 
within 18 months after completion of an 
accredited nurse anesthesia program. 

(3) Collaboration is a process by which the 
certified registered nurse anesthetist or 
graduate nurse anesthetist works with 
one or more qualified health care pro- 
viders, each contributing his or her 
respective area of expertise consistent 
with the appropriate occupational licen- 
sure laws of the State and according to 
the established policies, procedures, 
practices and channels of communica- 
tion which lend support to nurse anes- 
thesia services and which define the 
role(s) and responsibilities of the quali- 
fied nurse anesthetist within the practice 
setting. The individual nurse anesthe- 
tist maintains accountability for the 
outcome of his or her actions. 

(c) Nurse Anesthesia activities and responsibili- 
ties which the appropriately qualified registered 
nurse anesthetist may safely accept are dependent 
upon the individual's knowledge and skills and 
other variables in each practice setting as outlined 
in 21 NCAC 36 .0224(a). These activities in- 
clude: 

(1) Preanesthesia preparation and evalua- 
tion of the client to include: 
(A) performing a pre-operative health 
assessment; 



724 



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PROPOSED RULES 



(B) recommending, requesting and evalu- 
ating pertinent diagnostic studies; and 

(C) selecting and administering preanes- 
thetic medications. 

(2) Anesthesia induction, maintenance and 
emergence of the client to include: 

(A) securing, preparing and providing 
basic safety checks on all equipment, 
monitors, supplies and pharmaceutical 
agents used for the administration of 
anesthesia; 

(B) selecting, implementing, and 
managing general anesthesia, 
monitored anesthesia care, and 
regional anesthesia modalities, 
including administering anesthetic and 
related pharmaceutical agents, 
consistent with the client's needs and 
procedural requirements; 

(C) performing tracheal intubation, 
extubation and providing mechanical 
ventilation; 

(D) providing appropriate perianesthetic 
invasive and non-invasive monitoring, 
recognizing abnormal findings, 
implementing corrective action, and 
requesting consultation with 
appropriately qualified health care 
providers as necessary; 

(E) managing the client's fluid, blood, 
electrolyte and acid-base balance; and 

(F) evaluating the client's response during 
emergency from anesthesia and 
implementing pharmaceutical and 
supportive treatment to ensure the 
adequacy of client recovery from 
anesthesia. 

(3) Postanesthesia Care of the client to 
include: 

(A) providing postanesthesia follow-up 
care, including evaluating the client's 
response to anesthesia, recognizing 
potential anesthetic complications, 
implementing corrective actions, and 
requesting consultation with 
appropriately qualified health care 
professionals as necessary; 

(B) initiating and administering 
respiratory support to ensure adequate 
ventilation and oxygenation in the 
immediate postanesthesia period; 

(C) initiating and administering 
pharmacological or fluid support of 
the cardiovascular system during the 
immediate postanesthesia period; 



(D) documenting all aspects of nurse 
anesthesia care and reporting the 
client's status, perianesthetic course, 
and anticipated problems to an 
appropriately qualified postanesthetic 
health care provider who assumes the 
client's care following anesthesia 
consistent with 21 NCAC 36 .0224(f); 
and 

(E) releasing clients from the 
postanesthesia care or surgical setting 
as per established agency policy. 

(d) Other clinical activities for which the 
qualified registered nurse anesthetist may accept 
responsibility include, but are not limited to: 

(1) inserting central vascular access 
catheters and epidural catheters; 

(2) identifying, responding to and 
managing emergency situations, 
including initiating and participating in 
cardiopulmonary resuscitation; 

(3) providing consultation related to 
respiratory and ventilatory care and 
implementing such care according to 
established policies within the practice 
setting; and 

(4) initiating and managing pain relief 
therapy utilizing pharmaceutical agents, 
regional anesthetic techniques and other 
accepted pain relief modalities 
according to established policies and 
protocols within the practice setting. 

Statutory Authority G.S. 90-171.20(4); 90- 
171.20(7); 90-171.21; 90-171. 42(b). 

****************** 

CHAPTER 50 - BOARD OF EXAMINERS 

OF PLUMBING, HEATING AND FIRE 

SPRINKLER CONTRACTORS 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that the State Board of Examiners of 
Plumbing, Heating & Fire Sprinkler Contractors 
intends to amend rules cited as 21 NCAC 50 . 0407 
- .0408, .0412, .0505, .1102 and .1104. 



1 he proposed effective date of this action L 
November 1, 1994. 



is 



1 he public hearing will be conducted at 8:30 
a.m. on September 14, 1994 at the State Board of 



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725 



PROPOSED RULES 



Examiners of Plumbing, Heating & Fire Sprinkler 
Contractors, 801 Hillsborough Street, Suite 403, 
Raleigh, NC 27603. 

Ixeason for Proposed Action: 
21 NCAC 50 . 0407 - To require a firm and licens- 
ee to notify the Board within 30 days of any 
changes in status of license. 

21 NCAC 50 .0408 - To require licensee to notify 
Board within 30 days of any changes in location or 
mailing address from that shown on renewal. 
21 NCAC 50 .0412 - To provide notice to licens- 
ees of increased sanctions resulting from repeat 
offenses. 

21 NCAC 50 .0505 - Amendment to Paragraph (a) 
tightens the supervision obligation of licensees and 
gives notice of the type activities which are incon- 
sistent with adequate supervision of unlicensed 
employees. Paragraph (c) reduces to writing a 
long established standard against which compe- 
tence in design, as contrasted with installation, 
may be judged. 

21 NCAC 50 .1102 - To increase license renewal 
fees charged within the range authorized by the 
Legislature. 

21 NCAC 50 .1104 - To recover costs of providing 
documents. 

Lsomment Procedures: Persons wishing to present 
oral data, views or argument on these proposed 
rules or rule changes may file a notice with the 
Board at least 10 days prior to the public hearing 
at which the person wishes to speak. Comments 
should be limited to ten (10) minutes. The address 
of the Board is 801 Hillsborough St. , Suite 403, 
Raleigh, N. C. Written comments or arguments 
may be presented at any time through September 
14, 1994. 

Editor's Note: This Rule (21 NCAC 50 .1104) 
is subject to review by Rules Review Commission. 

SECTION .0400 - GENERAL 
PROCEDURES 

.0407 CORPORATIONS, 

PARTNERSHIPS AND TRADE 
NAMES 

(a) A license may be issued or renewed in the 
name of a corporation, partnership or business 
with a trade name upon compliance with the 
provisions of G.S. 87-26, verified by the execution 
of forms furnished by the Board. 



(b) Additional licensees may be added to licens- 
es issued in the above manner upon verifications of 
compliance with the provisions of G.S. 87-26. In 
the event a licensee terminates his association with 
a corporation, partnership, or business with a trade 
name, both the firm and the licensee are obligated 
to notify the Board within 30 days he 3hall im mer 



dintcly notify the executive secretary of the Board . 

(c) A person who has a license which has been 
expired less than three years may be added to an 
active license issued in the name of a corporation, 
partnership or business with a trade name, upon 
written request, completion of forms provided by 
the Board and payment of the fee set forth in Rule 
.1102 of this Chapter. 

(d) The license number assigned to a corpora- 
tion, partnership, or business with a trade name 
shall be that of the first licensee listed on the 
license. 

(e) A corporation, partnership or business with 
a trade name which is issued a license is subject to 
the provisions of G.S. 87, Article 2 and to these 
Rules. 

Statutory Authority G.S. 87-18; 87-22; 87-26. 

.0408 CHANGE OF TRADE NAME 

(a) The trade name under which a license is 
issued may be changed upon request to and ap- 
proval by the Board. If the Board approves the 
name change, the last license issued to the licensee 
must be returned to the executive secretary. 

(b) A license will be issued or renewed using 
any corporate name, partnership name, or trade 
name which is not identical to a name already in 
use according to the records of the Board. 

(c) The licensee shall notify the Board of any 
change in location or mailing address from that 
shown on the last license renewal invoice within 
30 days after the change takes place. 

Statutory Authority G.S. 55B-5; 87-18; 87-26. 

.0412 GUTOELINES ON DISCIPLINARY 
ACTIONS 

(a) The provisions of G.S. 87, Article 2, the 
rules of the Board and the matters referenced 
therein are part of the guidelines by which the 
conduct of an entity subject to the authority of the 
Board are evaluated. 

(b) The Board may suspend a license or impose 
probation provisions for violations of 21 NCAC 50 
.0402, 21 NCAC 50 .0403, 21 NCAC 50 .0404 
and 21 NCAC 50 .0405. Repeated violations may 
result in revocation. 



726 



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PROPOSED RULES 



(c) The Board may suspend a contractor's 
license or impose probationary terms when a 
licensee fails to comply with the supervision 
requirements of 21 NCAC 50 .0404, 21 NCAC 50 
.0406 or 21 NCAC 50 .0505. Multiple violations 
within the same proceeding may result in revoca- 
tion. 

(d) The Board may suspend or revoke a license 
where it is found that the licensee has failed to 
comply with the minimum standards of competence 
as set forth in 21 NCAC 50 .0505(b). The Board 
may condition the subsequent reinstatement of 
license upon passing of the Board's examination or 
completion of specified educational courses. The 
Board may impose additional conditions of rein- 
statement. 

(e) The Board may suspend or revoke the 
license of a contractor where it is found that the 
contractor abandoned a job after obtaining funds 
from the owner. 

(f) As a part of these provisions, the Board may 
revoke the license of any licensee where it is found 
that the contractor through a violation of G.S. 87, 
Article 2 has increased the risk of exposure to 
carbon monoxide or other harmful vapors, fire, or 
damage resulting therefrom, the release of sewage, 
methane gas, or contamination of the potable water 
supply. 

(g) The foregoing provisions are illustrative 
guidelines of sanctions imposed by the Board and 
are not intended to limit the authority of the Board 
or the variety of facts for which action may be 
required in a particular situation. 

Statutory Authority G.S. 87-18; 87-23. 

SECTION .0500 - POLICY STATEMENTS 
AND INTERPRETATIVE RULES 

.0505 GENERAL SUPERVISION 

AND STANDARD OF COMPETENCE 

(a) The general supervision required by G.S. 
87-26 is that degree of supervision which is neces- 
sary and sufficient to ensure that the contract is 
performed in a workmanlike manner and with the 
requisite skill and that the installation is made 
properly, safely and in accordance with applicable 
codes and rules. General supervision requires that 
review of the work done pursuant to the license be 
performed while the work is in progress. To 
provide adequate supervision and reduce risk to 
the public a licensee js deemed unavailable for 
general supervision when: 

(1) engaged in educational pursuits on a 
full time basis, i.e.. 12 or more credit 



hours per semester or quarter; 

(2) engaged in work whether paid or as a 
volunteer, for any person, agency or 
organization on a full time basis; 

(3) self employed in a field other than 
plumbing, heating or fire sprinkler 
contracting. 

Work performed by an unlicensed firm under the 
foregoing conditions is deemed to have been 
unsupervised. 

(b) The Board recognizes the provisions of the 
North Carolina Building Code, including the 
provisions of the Southern Building Code to the 
extent adopted by the Building Code Council of 
North Carolina from time to time as the minimum 
standard of competence applicable to contractors 
licensed by the Board. Licensees are required to 
design and install systems which meet or exceed 
the minimum standards of the North Carolina State 
Building Code and Manufacturer's specifications 
and installation instructions and accepted standards 
prevailing in the industry. 

(c) A minimum standard of competence in the 
design and installation of a heating or air condi- 
tioning system or the replacement of a furnace, 
condenser or other major component of a heating 
system is the creation of a system which will 
maintain temperatures at aU points in the condi- 
tioned area in each season and in each design area 
of the State within the accepted ranges prescribed 
by the North Carolina State Building Code. Manu- 
al L. Load Calculation for Residential Winter and 
Summer Air Conditioning prepared by the Air 
Conditioning Contractors of America. Manual D. 
Duct Design for Residential Winter and Summer 
Air Conditioning prepared by the Air Conditioning 
Contractors of America, and the Ashrae Handbook 
of Fundamentals for Nonresidential HVAC Sys- 
tems, all as incorporated from time to time in the 
North Carolina State Building Code. 

Statutory Authority G.S. 87-18; 87-23; 87-26. 

SECTION .1100 -FEES 

.1102 LICENSE FEES 

(a) The annual license fee for statewide plumb- 
ing and heating licenses issued in the name of an 
individual, corporation, partnership, or business 
with a trade name is sixty dollar s ($60.00) seven- 
ty-five dollars ($75.00) . 

(b) The annual license fee for plumbing and 
heating licenses limited in scope to cities or towns 
of less than 10,000 population and issued in the 
name of an individual, corporation, partnership or 



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727 



PROPOSED RULES 



business with a trade name is thirty — dollars 
{$30^ forty-five dollars ($45.00) . 

(c) The annual license fee for an individual who 
is not actively engaged in the business of plumbing 
or heating contracting by reason of full-time 
employment as a local government plumbing, 
heating or mechanical inspector and who holds 
qualifications from the Code Officials Qualification 
Board is tee — dollar s — ($10.00) fifteen dollars 
($15.00) . 

(d) The initial application fee for license as a 
fire sprinkler contractor is seventy-five dollars 
($75.00). The annual license fee for statewide 
licenses issued to a fire sprinkler contractor in the 
name of an individual, corporation, partnership or 
business with a trade name is two-hundred 
seventy-five dollars ($275.00). 

(e) The annual license fee for an individual 
whose qualifications are listed as the second or 
subsequent individual on a corporation, 
partnership, or business with a trade name under 
Paragraphs (a), (b) or (d) of this Rule is ten dollars 
($10.00). 

Statutory Authority G.S. 87-18; 87-22.1. 

.1104 FEES FOR COPIES OF RECORDS 
AND RETURNED CHECKS 

(a) copy of the Register of 

Licensees - $ 4.00 each 

(b) copies of license - $15.00 

(c) abstract of license record - $15.00 

(d) processing fee for returned checks - $20.00 

(e) fee for each copy of Board rules - $10.00 

Statutory Authority G.S. 87-18; 150B-19. 

****************** 

CHAPTER 56 - BOARD OF 

PROFESSIONAL ENGINEERS 

AND LAND SURVEYORS 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina State Board of 
Registration for Professional Engineers and Land 
Surveyors intends to adopt rules cited as 21 NCAC 
56.1701 - .1712. 

1 he proposed effective date of this action is 
November 1, 1994. 



A he public hearing will be conducted at 9:00 
a.m. on September 9, 1994 at 3620 Six Forks 
Road, Suite 300, Raleigh, North Carolina 27609. 

ixeason for Proposed Action: Set forth proce- 
dures for Continuing Professional Competency 
requirements for professional development, as a 
condition for annual registration renewal. 

(comment Procedures: Persons interested may 
present written or oral statements relevant to the 
action proposed at the hearing to be held as 
indicated above. Written statements not presented 
at the hearing should be submitted to the Board's 
office prior to September 15, 1994. 

SECTION .1700 - CONTINUING 
PROFESSIONAL COMPETENCY 

,1701 INTRODUCTION 

Every registrant shall meet the continuing profes- 
sional competency requirements of these regula- 
tions for professional development as a condition 
for registration renewal. 

Statutory Authority G.S. 89C-10(a); 89C-17. 

.1702 DEFINITIONS 

Terms used in this Section are defined as fol- 
lows: 

(1) Professional Development Hour (PDH) - 
A contact hour (nominal) of instruction 
or presentation. The common denomina- 
tor for other units of credit. 

(2) Continuing Education Unit (CELT) - Unit 
of credit customarily used for continuing 
education courses. One continuing edu- 
cation unit equals 10 hours of class in 
a pproved continuing education course. 

(3) College/Unit Semester/ Quarter Hour ; 
Credit for Accreditation Board for Engi- 
neering and Technology a pproved course 
or other related college course approved 
in accordance with article E of this Sec- 
tion. 

(4) Course/ Activity = Any qualifying course 
or activity with a clear purpose and 
objective which will maintain, improve, 
or expand the skills and knowledge rele- 
vant to the licensee's field of practice. 



728 



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PROPOSED RULES 



(5) Dual Registrant - A person who is regis- 
tered as both an engineer and a land 
surveyor. 

(6) Sponsor = Organization or individual 
recognized as qualified to offer "for 
credit" courses. Courses offered by 
qualified sponsors are deemed to be 
acceptable for PDH credit without scruti- 
ny of individual course content. 

Statutory Authority G.S. 89C-10(a); 89C-17. 

.1703 REQUIREMENTS 

Every registrant is required to obtain 15 PDH 
units during the renewal period. If a registrant 
exceeds the annual requirement in any renewal 
period, a maximum of 15 PDH units may be 
carried forward into the subsequent renewal 
period. Selection of qualifying courses and activi- 
ties is the responsibility of the registrant. Regis- 
trants have the option of selecting courses other 
than those offered by. a pproved sponsors. Post 
evaluation of courses offered by other than ap- 
proved sponsors could result in non-acceptance. 
PDH units may be earned as follows: 

(1) Successful completion of college courses. 

(2) Successful completion of continuing 
education courses. 

(3) Successful completion of correspondence, 
televised, videotaped, audiotaped. and 
other short courses/tutorials. 



14) 



Presenting or attending qualifying semi- 
nars, in-house courses, workshops, or 
professional or technical presentations 
made at meetings, conventions or confer- 



£5) 
16} 

(81 



Teaching or instructing in Items (1) 
through (4) of this Rule- 
Authoring published papers, articles, or 
books. 

Active participation in professional or 
technical societies- 
Patents. 



Statutory Authority G.S. 89C-10(a); 89C-17. 

.1704 UNITS 

The conversion of other units of credit to PDH 
units is as follows: 

(1) 1 College or unit semester hour 45 PDH 

(2) 1 College or unit quarter hour 30 PDH 
£3J 1 Continuing Education Unit 10 PDH 
(4) I Hour of professional development in 

course work, seminars, or professional or 



technical presentations made at meetings, 
conventions or conferences. i PDH 

(5) For teaching apply multiple of 2* 

(6) Each published paper, article 

or book. 10 PDH 

(7) Active participation in professional and 
technical society. (Each 
organization.) 2 PDH 

£8J Each patent 10 PDH 

Teaching credit is valid for teaching a 
course or seminar for the first time only. 
Teaching credit does not apply to full- 
time facility. 

Statutory Authority G.S. 89C-10(a); 89C-17. 

.1705 DETERMINATION OF CREDIT 

The Board of Registration has final authority 
with respect to a pproval of courses, sponsors, 
credit. PDH value for courses, and other methods . 
of earning credit. 

(1) Credit for college or community college 
approved courses will be based upon 
course credit established by the college. 

(2) Credit for qualifying seminars and work- 
shops, will bebased on one PDH unit for 
each hour of attendance. Attendance at 
qualifying programs presented at profes- 
sional and/or technical society meetings 
will earn PDH units for the actual time of 
each program. 

(3) Credit determination for published pa- 
pers, articles and books and obtaining 
patents is the responsibility of the regis- 
trant (subject to review as required by the 
Board.) 

(4) Credit for active participation in profes- 
sional and technical societies (limited to 
2 PDH per organization), requires that a 
licensee serve as an officer and/or active- 
]y_ participate in a committee of the orga- 
nization. PDH credits are not earned 
until the end of each year of service js 
completed. 

Statutory Authority G.S. 89C-10(a); 89C-17. 

.1706 RECORDKEEPING 

The responsibility of maintaining records to be 
used to su pport credits claimed is the responsibility 
of the registrant. Records required include, but 
are not limited to: 

(1) a tog showing the type of activity 
claimed, sponsoring organization, loca- 



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729 



PROPOSED RULES 



tion, duration, instructor's or speaker's 
name, and PDH credits earned; 

(2) attendance verification records in the 
form of completion certificates, or other 
documents supporting evidence of atten- 
dance; or 

(3) records as maintained by the National 
Professional Development Registry for 
Engineers (NPDRE). These records 
must be maintained for a period of three 
years and copies may be requested by the 
board for audit verification purposes. 

Statutory Authority G.S. 89C-10(a); 89C-17. 



.1707 EXEMPTIONS 

A registrant may be exempt from the profession- 
al development educational requirements for one of 
the following reasons: 

(1) New registrants by way of examination 
or reciprocity shall be exempt for their 
first renewal period. 

(2) A registrant serving on temporary active 
duty in the armed forces of the United 
States for a period of time exceeding one 
hundred twenty (120) consecutive days in 
a year shall be exempt from obtaining the 
professional development hours required 
during that year. 

(3) Registrants experiencing physical disabili- 
ty, illness, or other extenuating circum- 
stances as reviewed and approved by the 
board may be exempt. Supporting docu- 
mentation must be furnished to the board. 

(4) Registrants who list their occupation as 
"Retired" on the board approved renewal 
form and who further certify that they are 
no longer receiving any remuneration 
from providing professional engineering 
or land surveying services shall be ex- 
empt from the professional development 
hours required. In the event such a 
person elects to return to active practice 
of professional engineering or land sur- 
veying, professional development hours 
must be earned before returning to active 
practice for each year exempted not to 
exceed the annual requirement for two 
years. 

Statutory Authority G.S. 89C-10(a); 89C-17. 

. 1 708 REINSTATEMENT 



A registrant may bring an inactive license to 
active status by obtaining all delinquent PDH 
units. However, if the total number required to 
become current exceeds 30. then 30 shall be the 
maximum number required. 

Statutory Authority G.S. 89C-10(a); 89C-17. 

.1709 COMITY/OUT-OF- JURISDICTION 
RESIDENT 

Registrants who are residents of jurisdictions 



other than North Carolina must meet the CPC 
requirements of their resident jurisdiction. The 
requirements for North Carolina will be deemed as 



satisfied when a non-resident registrant provides 



evidence of having met the requirements of this 
resident jurisdiction. If registrants reside in a 
jurisdiction that has no CPC requirement, the 
resident must meet the requirements of North 
Carolina. 

Statutory Authority G.S. 89C-10(a); 89C-17. 

.1710 DUAL REGISTRANTS 

The number of PDH units required shall remain 



the same for persons who hold a second registra 
tion as engineer or land surveyor. Holders of 
second registration are free to utilize PDH units 
approved for either field at their sole discretion. 



Statutory Authority G.S. 89C- 10(a); 89C-17. 

.1711 FORMS 

All renewal a pplications will require the comple 



tion of a continuing education form specified by. 
the board outlining PDH credit claimed. The 



registrant must supply sufficient detail on the form 



to permit audit verification, must certify and sign 



the continuing education form, and submit with the 
renewal a pplication and fee. 

Statutory Authority G.S. 89C-10(a); 89C-17. 

AIM COMPLIANCE 

Failure to comply with the requirements of this 
Section shall result in non-renewal. 



Statutory Authority G.S. 89C- 10(a); 89C-17. 
****************** 

CHAPTER 62 - BOARD OF 
SANITARIAN EXAMINERS 



730 



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PROPOSED RULES 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the NC Board of Sanitarian Exam- 
iners intends to amend rules cited as 21 NCAC 62 
.0102 - .0104, .0201 - .0205, .0208, .0301 - 
.0302, .0305 - .0308, .0310, .0314 - .0317, 
.0319, .0402 - .0403, .0405, .0407- .0408, .0411; 
adopt 21 NCAC 62 .0414; and repeal 21 NCAC 62 
.0412. 

The proposed effective date of this action is 
November 1, 1994. 

The public hearing will be conducted at 10:00 
a.m. on September 9, 1994 at the Adams Building, 
Human Resources Building, Dix Campus, 101 
Blair Drive, Raleigh, NC 27603. 

Reason for Proposed Action: 
21 NCAC 62 .0102 & .0103 - Makes existing rule 
gender neutral. 

21 NCAC 62 .0104 - Makes existing rule gender 
neutral. Increasing amount secltreas. shall be 
bonded for. 

21 NCAC 62 .0201 - To correct the address to 
which petitions are sent. To make the existing rule 
gender neutral. To make grammatical changes. 
21 NCAC 62 .0202 - To correct the mailing 
address. To make the existing rule gender neutral. 
21 NCAC 62 .0203 - Makes existing rule gender 
neutral, lb make grammatical changes. 
21 NCAC 62 .0204 - To make grammatical chang- 
es. To make address correction. To make existing 
rule gender neutral. 

21 NCAC 62 .0205 - To make grammatical chang- 
es. 

21 NCAC 62 .0208 - To make grammatical chang- 
es. To make address correction. 
21 NCAC 62 .0301 - To make grammatical chang- 
es. 

21 NCAC 62 .0302 - To make grammatical chang- 
es. To make address correction. 
21 NCAC 62 . 0305 - . 0307 - To make grammatical 
changes. 

21 NCAC 62 . 0308 - To make existing rule gender 
neutral, lb make grammatical corrections. 
21 NCAC 62 .0310, .0314 - .0317 - To make 
grammatical changes. 

21 NCAC 62 .0319 - To make grammatical chang- 
es. To make existing rule gender neutral. 
21 NCAC 62 .0402 - To make address correction. 
Clarify the information which is to accompany the 
application. 



21 NCAC 62 .0403 - Establish how often the 
examination is to be given. Establish clear pass- 
ing scores for each section of the examination. 
Establish procedure for reexamination. Establish 
penalties for cheating. 

21 NCAC 62 .0405 - Make existing rule gender 
neutral. Clarify due date for renewal fee. Estab- 
lish a fee for returned checks. 
21 NCAC 62 .0407 - To make address correction. 
To increase requirement for continuing education 
from 10 to 15 clock hours. To clarify what consti- 
tutes approved continuing education. 
21 NCAC 62 .0408 - To make address correction. 
21 NCAC 62 .0411 - To bring the required train- 
ing courses in line with courses being taught by 
the Division of Health Services and the Center's 
for Disease Control. 

21 NCAC 62 .0412 - Repeal because it repeats the 
General Statutes. 

21 NCAC 62 .0414 - Specify arrangements to be 
made to insure proper guidance for a sanitarian 
intern by a registered sanitarian. 

Lsomment Procedures: Any person interested in 
these rules may present oral or written comments 
relevant to the proposed action at the public rule- 
making hearing. Written statements can be sub- 
mitted beginning August 15, 1994 through Septem- 
ber 15, 1994 and must be directed to the State of 
Sanitarian Examiners, 2971 Shell Ave., \aldese, 
NC 28690 

SECTION .0100 - RULES OF 
ORGANIZATION 

.0102 MEETINGS 

In addition to a required annual meeting in the 
City of Raleigh, additional meetings of the Board 
may be called by the Chairman chair at any desig- 
nated time and plaoo he may dooignato. place. 

Statutory Authority G. S. 90A-57. 

.0103 CHAIR AND VICE-CHAIR 

The Chairman chair of the Board shall carry out 
the following duties and responsibilities: 

(1) He shall oall call all meetings; 

(2) Ho oh all b e be authorized to act as the 
sole official s pok e sman representative for 
the Board to communications media and 
fee may direct the secretary-treasurer or 
another member to impart specific infor- 
mation concerning official actions or 
policies of the Board. 



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731 



PROPOSED RULES 



Statutory Authority G.S. 90A-57. 

.0104 SECRETARY-TREASURER 

(a) The Board shall elect from among its mem- 
bership a secretary who shall also serve as treasur- 
er and be referred to as secretary-treasurer of the 
Board. The secretary-treasurer shall serve for a 
term of one year or until a successor is elected. 

(b) The secretary-treasurer shall carry out the 
following duties and responsibilities: 

(1) He shall keep keep the records of the 
Board. Board; 

(2) He shall submit submit the necessary 
reports as required by Chapter 93B of 
the General Statutes of North Carolina- 
Carolina; 

(3) He shall pay pay all bills that are autho- 
rized by the Board. Board; 

(4) He s hall be be bonded to the amount of 
five fifty thousand dollars ($5,000). 
($50,000); and 

(5) He — s hall — submit submit all account 
books, receipts, checking accounts, 
etc., for an audit by a certified public 
accountant prior to the first meeting of 
the calendar year. 

Statutory Authority G.S. 90A-57. 

SECTION .0200 - RULEMAKING 
PROCEDURES 

.0201 PETITIONS 

(a) Any person wishing to submit a petition 
requesting the adoption, amendment or repeal of a 
rule by the Board of Sanitarian Examiners shall 
address the petition to: Chairma nr Chair, Board of 
Sanitarian Examiners, c/o Division of Environmen- 
tal Health. P.O. Box 30^ 27687. Raleigh, North 
Carolina 27602. 27611-7687. 

(b) The petition should contain the following 
information: 

(1) either a draft of the proposed rule or a 
summary of its contents and the statuto- 
ry authority for the agency to promul- 
gate the rule; 

(2) reason for proposal; 

(3) effect on existing rules; 

(4) any data supporting the proposal; 

(5) effect of the proposed rule on existing 
practices in the area involved, including 
cost factors; 

(6) name and address of each petitioner. 

(c) The chairman will chair shall determine, 
based on a study of the facts stated in the petition, 



whether the public interest will be served by 
granting the petition. He will consider all the All 
contents of the submitted petition, pkw and any 
additional information he deems relevant, deemed 
relevant, shall be considered. 
(d) Within 30 days of submission of the petition 



the Chairman, Board of Sanitarian Examinero, wil 



The chair shall render a final deci s ion, decision 



within 30 days of submission of the petition. I 
the decision is to deny the petition, the chair imm 



w+fi chair shall notify the petitioner in writing, 
stating the reasons for the denial. If the decision is 
to approve the petition, the Board of Sanitarian 
Examiners wttt shall initiate a rulemaking proceed- 
ing by issuing a rulemaking notice, as provided ii 
these Rules. 

Statutory Authority G.S. 90A-57; 150B-16. 

.0202 NOTICE 

(a) Any person or agency desiring to be placed 
on the mailing list for the Board of Sanitarian 
Examiners' rulemaking notices may file a request 
in writing, furnishing his or its the name and 
mailing address, with the Chairman Chair. Board 
of Sanitarian Examiners, c/o Division of Environ 



mental Health, P.O. Box 2&h 27687. Raleigh 
North Carolina 27602. 27611-7687. The request 
must state the subject areas within the authority ol 
the Board of Sanitarian Examiners for whict 
notice is requested. 

(b) The Board of Sanitarian Examiners wil 
review its mailing list periodically and may write 
to any person on the list to inquire whether that 
person wishes to remain on the list. If no response 
is received, that person may be removed from tin 
list. 

(c) If When practical er and appropriate, public 
notice of rulemaking proceedings wiH shall be sent 
to community, special interest, government, trad 
or professional organizations for publication. 

(d) When the agency intends to adopt a rule by 
reference, the rulemaking notice will include, ii 
addition to the requirements stated in G.S, 
150B- 12(a): 

(1) name and address of agency oi 
organization which previously adopted 
the material, material; 

(2) title and identifying number ol 
previously adopted material, material; 
and 

(3) date and edition of previously adopted 
material. 

(e) Persons desiring information in addition to 
that provided in a particular rulemaking notice 



732 



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PROPOSED RULES 



may contact: Chairman, Chair, Board of 
Sanitarian Examiners, c/o Division of 
Environmental Health. P.O. Box 2994-; 27687. 
Raleigh, North Carolina 27602. 27611-7687. 

Statutory Authority G.S. 150B-12; 90A-57. 

.0203 HEARINGS 

(a) Any person desiring to present oral data, 
views, or arguments on the proposed rule must, at 
lcaot five days before the hearing, file a written 
request with the Chairman r Chair. Board of Sani- 
tarian Examiners, c/o Division of Environmental 
Health, P.O. Box 3094-; 27687. Raleigh, North 
Carolina 27602. 27611-7687. at least five days 
prior to the hearing. This requirement may be 
waived or a failure to file a request may be ex- 
cused by the presiding officer for good cau s e- 
officer. Any person permitted to make an oral 
presentation is encouraged to submit a written 
copy of the presentation to the chairman chair 
prior to or at the hearing. 

(b) A request to make an oral presentation must 
contain a brief summary of the individual's views 
with respect to the subject matter, and a statement 
of the length of the time the individual intends to 
speak. Presentations may not exceed 10 minutes 
unless, upon request either before or at the hear- 
ing, the presiding officer grants an extension of 
time for good cause, time. 

(c) The chairman will promptly chair shall 
acknowledge receipt of a request to make an oral 
presentation and w4tt shall inform the person 
making the request of any limitations deemed 
necessary to the end of a full and effective public 
hearing on the proposed rule. 

(d) Written Submissions: 

(1) Any person may file a written submis- 
sion containing data, comments or 
arguments after publication of a rule- 
making notice up to and including the 
day of the hearing and within five days 
following the hearing hearing, unless a 
longer period is stated in the particular 
notice or an extension of time is grant- 
ed for good cause following notice. 

(2) A written submission must clearly state 
the rule or proposed rule to which the 
comments are addressed and must also 
include the name and address of the 
person submitting it. Except when 
otherwise stated in the particular rule- 
making notice, written submission must 
be sent to the Chairman Chair. Board 
of Sanitarian Examiners, c/o Division 



of Environmental Health, P.O. Box 
30947 27687. Raleigh, North Carolina 
27602r 2761 1-7687. 
(3) The chairman will promptly chair shall 
acknowledge receipt of all written 
submissions. 

(e) The presiding officer at the hearing shall 
have complete control of the proceedings, includ- 
ing: 

(1) the responsibility of having a record 
made of the proceeding s , proceedings: 

(2) extension of any time allotments, allot- 
ments; 

(3) recognition of s peakers, speakers; 

(4) elimination of repetitious presentations, 
presentations; 

(5) direction of the flow of the discus s ion, 
discussion: and 

(6) general management of the hearing. 

(f) The presiding officer shall insure that each 
person participating in the hearing is given a fair 
opportunity to present views, data and comments. 

Statutory Authority G.S. 90A-57; 150B-12. 

.0204 JUSTIFICATION OF 

RULEMAKING DECISION 

(a) — Any intere s ted person, either prior to adop 
tion or within 30 day s thereafter, who desires a 
conci s e A statement of the principal reasons for 
and against the adoption of a rule by the Board of 
Sanitarian Examiners and the factors that led to 
overruling the considerations urged against its 
adoption shall be made available to requesting 
parties, may submit a request to the Chairman, 
Board of Sanitarian Examiners, P.O. Box 2001, 
Raleigh, North Carolina 27602. 

(1) {b) The request must be made in writing- 
writing and submitted the Chair. Board 
of Sanitarian Examiners, c/o Division of 
Environmental Health. P.O. Box 27687. 
Raleigh. North Carolina 27611-7687. 
prior to adoption or 30 days thereafter. 

(2) fe) The chairman chair shall make a 
written answer to the request. 

Statutory Authority G.S. 90A-57; 150B-12. 

.0205 RECORD OF RULEMAKING 
PROCEEDINGS 

A record of all rulemaking proceedings including 
any petitions received by the Board of Sanitarian 
Examiners witt shall be maintained for three years. 
This record wiH shall include: 

(1) the original petition, petition; 



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733 



PROPOSED RULES 



the notice, notice; 

all written memoranda and information 
submitted, submitted; 
a record of the oral hearing, hearing; 
any reasons for or against adoption of the 
rule, rule; and 
a final draft of the rule. 
shall be maintained in a file in by the 



(2) 
(3) 

(4) 
(5) 

(6) 
It wi 

chairman's office, P.O. Box 2091, Raleigh, North 
Carolina — 27602, and will be available for public 
in s pection — during — regular — office — hours, chair. 
Board of Sanitarian Examiners. 

Statutory Authority G.S. 90A-12; 150B-12. 

.0208 DECLARATORY RULINGS 

(a) The Board of Sanitarian Examiners shall 
have the power to make issue declaratory rulings. 
All requests for declaratory rulings s hall be written 
and submitted to the Chairman, Board of Sanitari 
an Examiner s , P.O. Box 2091, Raleigh, North 
Carolina 27602. 

(b) All requests for a declaratory ruling shall be 
in writing and submitted to the Chair, Board of 
Sanitarian Examiners, c/o Division of Environmen- 
tal Health. P.O. Box 27687. Raleigh. North 
Carolina 27611-7687 and must include the follow- 
ing information: 

(1) name and address of petitioners; 

statute or rule to which petition relates; 
concise statement of the manner in 
which petitioner is aggrieved by the 
rule or statute or its potential applica- 
tion to him; and 

the consequences of a failure to issue a 
declaratory ruling. 

(c) Whenever the Board of Sanitarian Examiners 
believes for good cause that issuance of a declara- 
tory ruling is undesirable, it may refuse to issue 
one. When good cause not to i s sue a ruling is 
deemed to exist, the chairman will The chair shall 
notify the petitioner of his the decision in writing 
stating reasons for the denial of the request. 

(d) Where When a declaratory ruling is deemed 
appropriate, made, the Board of Sanitarian Exam- 
iners will issue the ruling within 60 days of receipt 
of the petition, request. 

(e) A record of all declaratory ruling proceed- 
ings wtH shall be maintained for three years. This 
record witt shall contain: 

(1) the original request, request; 

(2) all written memoranda and information 
submitted, submitted; and 



(2) 
(3) 



(4) 



(3) either the declaratory ruling or a state- 
ment of the reasons for denying the 
request. 
This record witt shall be maintained in a file at the 
office of the Head of the Environmental Health 
Section, Divi s ion of Health Scrvioco, 1330 St. - 
Mary' s Street, Raleigh, North Carolina, and will 
be available for public inspection during regular 
office hourB. by the chair. Board of Sanitarian 
Examiners. 



Statutory Authority G.S. 90A-57; 150B-17. 

SECTION .0300 - CONTESTED 
CASES 

.0301 OPPORTUNITY FOR AN 

ADMINISTRATIVE HEARING 

(a) Upon request, an administrative hearing will 
be held prior to final action on a matter by the 
Board of Sanitarian Examiners if the action will 
affect a right, privilege or benefit already enjoyed 
by a specific party party, unless the action is taken 
in an emergency situation. 

(b) Whenever When the Board of Sanitarian 
Examiners takes an action which affects a right, 
privilege or duty of a specific party, it will notify 
the party in writing of that party's right to an 
administrative hearing on the matter. 

Statutory Authority G.S. 150B-3; 150B-38. 

.0302 REQUEST FOR A HEARING 

fa) — Before a hearing request may be made, it is 
recommended that a person fir s t make reasonable 
efforts to resolve the problem with the Board of 

Sanitarian Examiners informally. Inquiries or 

complaints s hould be directed to the per s on in 
charge of the program, institution, facility, office 
or agency with which the complainant is dealing. 

fb) £§} Following attempts to — resolve issues 
informally, if still dissatisfied, the person may file 
a A written request for a hearing may be filed with 
the Chairman ? Chair. Board of Sanitarian Examin- 
ers, c/o Division of Environmental Health. P.O. 
Box 2094-; 27687, Raleigh, North Carolina 27602. 
27611-7687. 

{e) fb} Such request must contain the following 
information: 

(1) the name and address of petitioner, 
petitioner; 

(2) a concise statement of the agency action 
being challenged, challenged; and 



734 



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NORTH CAROLINA REGISTER 



August IS, 1994 



PROPOSED RULES 



(3) 



(4)- 



a concise statement of the way in which 

the petitioner has been aggrieved, and 

aggrieved. 

a clear and specific demand for a hear 



wgr 



(ft {c} Such requests wttt shall be promptly 
acknowledged and a hearing s cheduled promptly. 
scheduled. 

Statutory Authority G.S. 150B-38. 

.0305 NOTICE 

(u) Iu determining the period between notice and 
hearing all pertinent factor s will be considered 
which may include; 

(ft the complexity of the issues involved, 

(ft the number of parties, 

(ft the probable length of the pre s entation 

at the hearing, 

(ft the probable s uccess of notifying all 

parties without resorting to publication, 

(ft the probability of prehearing motions 

and s ubpoenas, and 

(ft any other factor s likely to affect the 

hearing. 
{e) In addition to the requirements specified in 
G.S. 150B-38(b), the notice; notice shall: 

(1) shall give the name, title, address, and 
phone number of the person in the Board 
of Sanitarian Examiners to contact for 
further information or discussion; 

(2) sbett include a statement that failure to 
appear at the hearing may result in the 
decision on the case being made in the 
party's absence; and 

(3) may give notice of the date and place for 
the prehearing conference, if any. 



Statutory Authority G.S. 150B-38. 

.0306 INTERVENTION 

(a) A motion to intervene of right, shall 



be 

granted in accordance with as provided in G.S. 
1A-1, Rule 2ft 24. will be granted, if timely, and 
the movant meets the criteria of that rule. — A 
motion will be considered timely if a grant would 
not cause substantial prejudice to the rights of the 
parties, — substantial — added — expense, — ef — s eriou s 
inconvenience to the parties. 

(b) — A petition to intervene pormissively, as 
provided in G.S. 1A 1, Rule 2 4 , will be granted, 
if timely under Subsection (a) of this Rule, when 
the movant meets the criteria of that rule and the 
Board of Sanitarian Examiners determines that; 



(ft There — is — s ufficient — legal — ef — factual 

s imilarity — between — tbe — petitioner's 
asserted rights, privileges, or duties and 
those of the parties to the hearing; and 

(ft Permitting participation by the petition 

cr would — not unduly burden the hear 

Wgr 

(ft — Di s cretionary intervention will be allowed 
upon timely petition, which in no case will be after 
termination of the hearing itself, when deemed 
advisable to do s o by the Board of Sanitarian 
Examiners. Intervention will bo deemed advisable 
when: 

(ft The information the petitioner desires to 

present i s relevant and not repetitious 
or m e rely cumulative; and 

(ft Permitting intervention by the petitioner 

as a party would aid the disposition of 
the matter. 
(ft — The petition for discretionary intervention 
must include the following informati o n: 

(ft a — citation — to — any — s tatutory — ef 

non statutory ground s for intervention; 
if none, the petition should so indicate; 

(ft a statement of the claim or defense in 

respect of which intervention i s sought; 

(ft name and addres s of petitioner; 

(ft f»H — identification — of the hearing in 

which petitioner i s socking to intervene; 



(ft a — summary — ef- — the — arguments — ef 

evidence petitioner socks to present. 

(ft fb) If the Board of Sanitarian Examiners 
determines to allow intervention, notification of 
that decision wiU shall be issued promptly to all 
parties and to the movant or petitioner. In cases of 
discretionary intervention notification win shall 
include a statement of the limitations, if any, of 
time, subject matter, evidence or whatever else is 
deemed necessary which are imposed on the 
intervenor. 

(ft £cj If the Board of Sanitarian Examiners' 
decision is to deny intervention, the movant or 
petitioner wiH shall be notified promptly . Such 
notice wiU shall state all reasons for the decision 
and witt shall be issued to all parties parties, as 
well as to the movant or petitioner. 

Statutory Authority G.S. 150B-38. 

.0307 CHANGE OF VENUE 

(a) Any party may move for a change of venue 
by filing a motion with the hearing officer at least 
five days before the hearing. The motion must 
contain: 



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735 



PROPOSED RULES 



(1) the party's name and address, address; 

(2) identification of the contested case and 
the scheduled hearing, hearing; 

(3) the county in which the party requests 
that the hearing be held, held; and 

(4) a concise statement of the reasons for a 
change of venue. 

(b) The presiding officer wtH shall consider the 
motion and promptly notify the movant of the 
decision, including the reasons for the decision. If 
the motion is approved, the presiding officer wtH 
shall issue notice of change of venue to all other 
parties. 

Statutory Authority G.S. 150B-38; 150B-40. 

.0308 DISQUALIFICATION OF 
BOARD MEMBERS 

(a) If for any reason the presiding officer or a 
member of the body participating in the hearing 
determines that personal bias or other factors 
would prevent him from conducting the hearing 
and performing all duties in an impartial manner, 
he the person shall submit, in writing to the 
Chairman, chair. Board of Sanitarian Examiners, 
hts the disqualifications and the reasons therefor. 

(b) If for any reason any party in a contested 
case believes that the presiding officer or a 
member of the body conducting the hearing is 
personally biased or otherwise unable to conduct 
the hearing and perform all duties in an impartial 
manner, the party may file a sworn, notarized 
affidavit with the Chairman, chair. Board of 
Sanitarian Examiners, which states all facts the 
party deems relevant to the disqualification of the 
allegedly biased person. 

(c) An affidavit of disqualification wiH shall be 
considered timely if filed before commencement of 
the hearing. Any other affidavit will be deemed 
timely provided it is filed at the first opportunity 
after the party becomes aware of facts which give 
rise to a reasonable belief the person may be 
disqualified under this Rule. 

(d) Disqualification by Board 

(1) The Board of Sanitarian Examiners 
shall decide whether to disqualify the 
person. 

(2) The persons whose disqualification is to 
be determined, will not participate in 
the decision but may be called on to 
furnish information to the Board. 

(3) The Board shall appoint a member of 
the Board to investigate the allegations 
of the affidavit. 



(4) The investigator will report the findings 
and recommendations to the Board who 
will then decide whether to disqualify 
the challenged individual. 

(e) When, by reason of personal bias, the 
presiding officer or hearing body is disqualified 
after the hearing has begun, the case will continue 
unless it is shown that substantial prejudice will 
result therefrom. 

(f) When, for reasons other than personal 
interest, a presiding officer is disqualified or 
otherwise is unable to continue the hearing, the 
Board shall appoint another presiding officer and 
the hearing will be resumed except: except when: 

(1) When oral testimony has already been 
given, and it is determined by the 
successor presiding officer that the 
viewing of the witness is an important 
element of the case, in which case that 
portion of the testimony and evidence 
will be repeated; and 

(2) When continuation of the hearing would 
result in substantial prejudice to the 
rights of the parties. 

(g) The determination of whether resuming and 
continuing the case will result in substantial 
prejudice is to be made by the remaining members 
of the Board of Sanitarian Examiners. 

(h) Determinations of disqualification, 

discontinuation of the hearing, rehearing of a 
portion or all of a contested case, or dismissal of 
a case without prejudice, together with a statement 
of reasons will be part of the record of the case 
and will be communicated to all parties promptly. 
parties. 

Statutory Authority G.S. 150B-38. 

.0310 CONTINUANCES 

A continuance w4U may be granted to a party 
enly in compelling circumstances especially when 
one such disposition has been previously requested 
by and granted to the party, circumstances. 

Statutory Authority G.S. 150B-38; 150B-4O. 

.0314 PRE-HEARING CONFERENCE 

(a) The conference wili shall be informal in 
nature. 

(b) The conference wiH shall be noted in the 
notice of hearing or in a subsequent notice if a 
conference is later determined to be necessary by 
the presiding officer. 

(c) The purposes of this conference •mti shall be 
to discuss: 



736 



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PROPOSED RULES 



(1) the possibility of simplification of 
issued, issues; 

(2) stipulation of facts or findinga, findings; 

(3) identification of areas where evidence 
will be needed, is needed; 

(4) indication of discovery or subpoenas 
needed, needed; 

(5) the need for consolidation of cases or 
joint hcaringa, hearings; and 

(6) any other matters which will may 
reduce costs or costs, save time or 
otherwise aid expeditious disposition of 
the contested case. 

Statutory Authority G.S. 150B-38; 150B-40. 

.0315 SIMPLIFICATION OF ISSUES 

In a contested case, the Board of Sanitarian 
Examiners and the other parties may agree in 
advance to simplify the hearing by: 

(1) eliminating issues to be contested at the 
hearing, hearing; 

(2) accepting the validity of certain proposed 
evidence, evidence; 

(3) accepting the findings in some other case 
with relevance to the case at hand, hand; 
or 

(4) agreeing to such other matters as may 
expedite the hearing. 

Statutory Authority G.S. 90A-4; 150B-38. 

.0316 SUBPOENAS 

(a) Subpoenas requiring the attendance of 
witnesses or those to produce documents or 
evidence wiH shall be issued promptly by the 
presiding officer a#ter upon receipt of a request 
from a party to the case for such a subpoena. 

(b) A request for a subpoena shall include: 

(1) the name and address of the person 
requesting the subpoena; 

(2) full identification of the hearing to 
which the witness or evidence is to be 
subpoenaed; 

(3) name and address of the person(s) 
whose appearance is sought; 

(4) specific identification, including a 
detailed description, and specific 
designation of present location of any 
documents, evidence, or things sought, 
including the name and address of those 
in possession of the items sought; and 

(5) the reasons the person, documents, or 
evidence should be compelled to attend 
the hearing, including a statement of 



the relevance and significance of the 
person, documents, or evidence to the 
case. 

(c) Any objection to the subpoena shall be 
served on the party who requested the subpoena at 
the same time it is filed with the Board of 
Sanitarian Examiners. 

(d) The party requesting the subpoena, in such 
time as may be granted by the presiding officer, 
may file a written response to the objection. The 
response shall be served in like manner as the 
objection. 

(e) After receipt of the objection and any 
response, the presiding officer shall issue a notice 
to the person requesting and the person challenging 
the subpoena and may notify all other parties of an 
open hearing to be scheduled as soon as 
practicable at which evidence and testimony may 
be presented limited to the questions raised by the 
objection and any response. 

(f) Promptly after After the close of such 
hearing, the Board members hearing the case will 
shall rule on the challenge and issue a written 
decision. A copy of this decision will be issued to 
all parties and be made a part of the record. 

Statutory Authority G.S. 150B-38; 150B-39. 

.0317 TRANSCRIPTS 

(a) A party who wants Requests for a transcript 
of a hearing hearing, in part or part in whole, shall 
be made to of a hearing should contact the 
Chairman r Chair, Board of Sanitarian Examiners, 
c/o Division of Environmental Health. P.O. Box 
2Q94-; 27687, Raleigh, North Carolina 27602. 
27611-7687. 

(b) The party requesting the transcript shall bear 
the cost of the transcript or part thereof. 

Statutory Authority G.S. 150B-38; 150B-42(c). 

.0319 RECORD OF CONTESTED CASES 

An official record of all administrative hearings 
wiH shall be maintained for ten years. The record 
wiH shall be maintained m — a — file by the 
Sec rotary Treasurer — whose — name, — address — and 
telephone number eon be obtained by contacting 
the office of the Head of the Environmental Health 
Section, Division of Health Services, 1330 St. 
Mary' s Street, Raleigh, North Carolina, (telephone 
919/733 2 884 ) and will be available for public 
inspection — during — regular — office — hours, chair. 
Board of Sanitarian Examiners. 

Statutory Authority G.S. 150B-38; 150B-42(c). 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



737 



PROPOSED RULES 



SECTION .0400 - RULES 
OF OPERATION 

.0402 APPLICATIONS 

(a) Applications for registration as a sanitarian 
or sanitarian intern must be filed with the Board 
on a form provided by the Board and available 
from the secretary-treasurer of the Board or from 
the Division of Health Services, Environmental 
Health, P.O. Box 2Q9h 27687, Raleigh, NC 
27602. 27611-7687. 

(b) The application form shall be signed by the 
applicant and shall contain biographical data on the 
applicant including education, experience, duties, 
prior registration and related matters as specified 
by the Board to determine the applicant's 
qualifications for registration. The application 
shall also be accompanied by a certified transcript 
ffera the educational institution from which the 
applicant has received a degree, following: 

(1) a certified transcript sent directly to the 
Board from the educational institutional 
from which the applicant has received a 
degree; 

(2) certified transcripts from all other 
educational institutions from which the 
applicant has earned science credits 
used to comply with G.S. 90A-53; 

(3) an official job description signed by the 
applicant's supervisor; and 

(4) the registered sanitarian's statement as 
described in Rule .0414 of this 
Chapter. 

Statutory Authority G.S. 90A-53; 90A-57. 

.0403 EXAMINATION 

(a) The Board shall administer an examination 
three times annually, at a time and location 
designated by the Board. An applicant for a 
certificate as a registered sanitarian shall pass an 
the examination which consists of the following: 

(1) As an objective written examination, 
designed to test the applicant's 
competence in the subject of 

environmental health sanitation, 

administered — semi annually — by — the 
Board at a time and location authorized 
by the Board; health; 

(2) Aft an oral examination administered 
prepared and evaluated by the Board; 
and 

(3) A a written question prepared and 

evaluated by the Board end 

admini s tered by the Board. Board. 



(b) Every applicant shall be required to pass the 
examination with a grade of at least 70 percent. 
percent, with the objective written examination to 
count 50 percent of the total score, the oral 
examination to count 25 percent of the total score, 
and the written question to count 25 percent of the 
total score. An applicant must score a minimum 
of 60 percent on each individual portion of the 
examination. 

(c) An applicant retaking the examination must 
retake all three portions, unless a written request 
is made to the Board to only retake \ or 2 
portions. This request must be received by the 
Board prior to the cutoff date for registration for 
the examination. 

(d) Applicants shall not cheat or attempt to cheat 
on the examination by any means, including giving 
or receiving assistance, and shall not communicate 
in any manner with any person during the 
examination, other than the person(s) administering 
the examination. Violation of this rule shall be 
cause for dismissal from the examination. 

and 



invalidation of the examination score, 
revocation or denial or registration. 

Statutory Authority G.S. 90A-53; 90A-57. 



.0405 AUTHORIZED EXPENDITURES 
AND FEES 

(a) Individual Board members are not authorized 
to incur expenses nor financially obligate the 
Board without prior notification and permission of 
the secretary-treasurer or chairman r chair. 

(b) The following fees shall apply: 

(1) Application application for sanitarian 
intern— $35.00; 

(2) Examination examination — Current 
current cost of the Professional 
Examination Service's registered 
sanitarian exam; 

(3) Regi s tration registration by 
reciprocity~$35.00; and 

(4) Annual annual renewal-- $20.00. 
$35.00. 

(c) Applications for registration, renewal, and 
examinations shall be accompanied by the payment 
of appropriate fees set by the Board. 

(d) An additional fee of five dollars ($5.00) shall 
be charged for each late renewal received 
postmarked after January 1 December 31 of each 
year. 

(e) An additional fee of twenty dollars 
($20.00) shall be charged for all returned checks. 



738 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



PROPOSED RULES 



Statutory Authority G.S. 90A-53; 90A-54; 90A-57; 
90A-62; 90A-63. 

.0407 RENEWAL 

(a) Applications for renewal must be filed with 
the Board on a form provided by the Board and 
available from the secretary-treasurer or from the 
Division of Health — Services, Environmental 
Health, P.O. Box 30^ 27687. Raleigh, NC 
«6Q3t 2761 1-7687. 

(b) The renewal application must be completed 
and signed by the applicant. 

(c) Renewal fees must be received annually not 
later than December 31. The secretary-treasurer 
shall notify each registered sanitarian and regis- 
tered sanitarian intern of the December 3 1 expira- 
tion date of registration and shall send a renewal 
application form to the last current mailing address 
for each sanitarian and intern on or before Decem- 
ber 1 of each year. 

(d) Registered sanitarians or sanitarian interns 
who fail to renew by December 31 shall be noti- 
fied by the secretary-treasurer that their registra- 
tion has expired and that they may not practice as 
a sanitarian until reinstated by paying the required 
renewal fee plus a late fee as specified in these 
rules. 

(e) Sanitarian interns must renew temporary 
certificates annually by submitting a renewal 
application no later than December 31 and the 
required renewal fee. 

(f) Registered Sanitarians sanitarians or regis- 
tered sanitarian interns shall successfully complete 
the following specified a minimum of 15 instruc- 
tional clock hours of continuing education require 
meats for renewal: acceptable to the Board each 
year. Continuing education acceptable to the 
Board includes: 

(1) A bachelor's or master's graduate of an 
accredited environmental — health — pro- 
gmm must complete within two ycQra 
of employment, the NC State Univcrsi 
ty Food Protection short course or one 
s oil s workshop approved by the Board; 
specialized training courses required in 
Rule .0411 of this Chapter; 

(2) The CDC Homestudy Cour s e 3013 G, 
"In s ect and Rodent Control", during the 
first three year s following employment- 
Successful — completion — of the — CDC 
Homestudy Couree 3013 G prior to 
employment or completion of an cquiv 
alent course offered by an onvironmen 
tal health degree program accredited by 
the National Accreditation Council of 



Environmental Health Curricula meets 
the requirements for CDC Home s tudy 
Couree 3013 G; District Environmental 
Health Section Educational meetings; 

(3) A public health law course during the 
first four years following employment; 
and professional association courses and 
educational meetings; 

(4) After four years of employment, ten 
instructional clock hours of continuing 
education each year. Continuing oduca 
tion acceptable to the Board includes 
attendance at district meetings; satisfao 
tory completion of a seminar or short 
course; — successful — completion — ef- — a 
cour s e offered by on accredited college 
or university; or flUCCCOBful completion 
of any — one of the following — CDC 
Homestudy Courses; 

3011 G, "Basic Mathematics in 
Environmental Health"; 

3012 G, "Communicable Disease 
Control"; 

- 301 4 G, "Watcrbornc Disease 
Control"; 

3015 G, "Environmental Protection"; 
- 3016 G, "Foodbornc Disease 
Control"; 

3017 G, "Water Fluoridation"; 



(51 



16} 



301 8 G, "Microbial Ecology of 

Foods"; 

■ 3030 G, "Principles of 

Epidemiology". 
Each of the CDC Homestudy Courses 
may bo used only one time to s atisfy 
the ten clock hours of continuing educa 
tion requirements. — Documentation of 
successful completion of any one of the 
CDC Homestudy Courses will satisfy 
the continuing education rcquiremonto 
for the calendar year in which the 
course is completed, seminars or short 
courses offered by. the North Carolina 
State of Practice Committee; 
successful completion of a job related 
course offered by an accredited college 
or university, with the hours credited 
for the year that the course is success- 
fully completed; 

successful completion of a job related 
course offered by the Centers for Dis- 
ease Control and Prevention, the Food 
and Drug Administration, or the Envi- 
ronmental Protection Agency; and 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



739 



PROPOSED RULES 



(7) other training for which a pproval has 
been granted by the Board. 

(g) Registrations that have expired may be 
renewed within 12 months after expiration upon 
submittal of proper a pplication and payment of the 
appropriate renewal fee, plus the late fee, as 
applicable. Registrations that have expired for 
more than 12 months, but not more that 36 
months, may be considered for renewal upon 
submittal of proper a pplication and payment of the 
appropriate renewal fee plus the late fee for each 
year since the expiration. The applicant shall 
provide verification to the board that adequate 
continuing education clock hours have been 
obtained during each year since the expiration to 
comply with the requirements of this Section- 
Registrations that have expired for more than 36 
months may not be renewed. 

(h) Interns that are no longer employed in the 
field of environmental health in North Carolina 
may not renew. 



Statutory Authority G.S. 90A-57; 90A-63. 

.0408 PUBLIC INSPECTION 

A copy of these rules is available for public 
inspection in the office of the Head of the Division 
of Environmental Health — Section, — Division of 
Health Services, Health. 1330 St. Mary's Street, 
Raleigh, North Carolina. 

Statutory Authority G.S. 90A-57. 

.0411 SPECIALIZED TRAINING 

(a) — As Every applicant for registration who i s a 
graduate — ©f- — a — bachelor' s — ef — master's — degree 
program accredited by the National Accreditation 
Council for Environmental Health Curricula shall 
successfully complete either Sub-items (D(a) 
through (e) or Sub-items (2) (a) through (b) of the 
following: 

UQ Track I: 

(a) {ij Orientation and initial field training 
as soon as possible after employment as 
a sanitarian intern, but in no case later 
than 90 days after employment; 
orientation and initial field training 
must be completed at one of the 
Division of Environmental Health 
Services' — recognized orientation and 
initial field training centers; and 

(b) (3) The Center Centers for Disease 
Control (CDC) Homestudy Course 
3010-G, "Environmental Science", or 
its equivalent; equivalent, succes s ful 



Successful completion of the CDC 
Homestudy Course 3010-G or its 
equivalent prior to employment or 
graduation from an environmental 
health degree program accredited by the 
National Accreditation — Council — fer 
Environmental Health Curricula Envi- 
ronmental Health Science and Protec- 



tion Accreditation Council meets the 
requirements of this Rule. Rule; and 
(b) An applicant for rcgiotration who is a graduate 
of a bachelor's program with a minimum of 15 
semester hour s s cience shall successfully complete 
the following; 

fB Requirements in (1) and (2) in Rule 

.0 4 11 (a); and 
{c) (2)Thc Either the NC State University 
Food Protection Short course or one 
basic soils workshop approved by the 
Board. Board within the first 2 years 
following employment; and 
£d} The CDC Homestudy course 3013-G. 
"Vectorborne Disease Control" during 
first three years following employment- 
Successful completion of the CDC 
Homestudy course 3013-G prior to 
employment, or completion of an 
equivalent course offered by_ an 
environmental health degree program 
accredited by the National 
Environmental Health Science and 
Protection Accreditation Council meets 
the requirements of this Rule; and 
(e) A public health law course during the 
first 4 years following employment. 
12) Track II: 

(a) Orientation and Initial Internship 
Training for Environmental Health 
Interns sponsored by the Division of 
Environmental Health at the centralized 
training site as soon as practical, but in 
no case more than nine months 
following registration as a sanitarian 
intern; and 

(b) A public health law course during the 
first four years following employment. 

Statutory Authority G.S. 90A-53; 90A-57. 

.0412 EXPERIENCE 



An applicant for a certificate as a regi s tered 
sanitarian shall have at least two year s experience 
in the field of environmental health sanitation, or 
at least one year of such experience in the field of 



740 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



PROPOSED RULES 



environmental health sanitation and ono year of 
graduate 3 tudy in the sanitary sciences . 

Statutory Authority G.S. 90A-53; 90A-57. 

.0414 SANITARIAN INTERN 

Every applicant for registration as a sanitarian 
intern must be under the guidance of a registered 
sanitarian as defined in G.S. 90 A. For those 
places of employment that do not have another 
registered sanitarian on staff arrangements must be 
approved by the Board prior to registration to 
assure that guidance by a registered sanitarian is 
provided. A statement shall be filed with the 
Board indicating that the registered sanitarian 
providing guidance will instruct and guide the 
intern applicant in the performance of all environ- 
mental health duties. This statement will indicate 
the date in which the registered sanitarian provid- 
ing guidance assumes responsibility and the signa- 
tures of both the registered sanitarian and the 
applicant. 

Statutory Authority G.S. 90A-54; 90A-63. 



9:10 NORTH CAROLINA REGISTER August 15, 1994 741 



LIST OF RULES CODIFIED 














1 he List of Rules Codified is a listing of rules that were filed with OAH in the month indicated. 

Key: 

Citation = Title, Chapter, Subchapter and Rule(s) 

AD = Adopt 

AM = Amend 

RP = Repeal 

With Chgs = Final text differs from proposed text 

Corr = Typographical errors or changes that requires no rulemaking 

Eff. Date = Date rule becomes effective 

Temp. Expires — Rule was filed as a temporary rule and expires on this date or 180 days 




NORTH CAROLINA ADMINISTRATIVE CODE 
JULY 94 

TITLE DEPARTMENT TITLE DEPARTMENT 

10 Human Resources 15A Environment, Health, and 

1 1 Insurance Natural Resources 

12 Justice 19A Transportation 

13 Labor 21 Occupational Licensing Boards 
14A Crime Control and 1 - Acupuncture 

Public Safety 36 - Nursing 




Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 




10 NCAC 3D .0913 




/ 




/ 




08/01/94 






.1001 




/ 




/ 




08/01/94 






3M .0202 - .0203 




/ 




/ 




08/01/94 






.0205 




/ 




/ 




08/01/94 






.0207 




/ 




/ 




08/01/94 






3U .0713 










/ 








411 .0101 




/ 








09/01/94 






.0103 




/ 




/ 




09/01/94 






.0304 




/ 








09/01/94 






.0305 - .0306 




/ 




/ 




09/01/94 






.0308 




/ 








09/01/94 






.0312 




/ 








09/01/94 






.0401 




/ 




/ 




09/01/94 










742 9:10 NC 


)RTH C 


AROLIi 


VA REC 


wISTER 




Aug 


vst 15, 1994 


■ 



LIST OF RULES CODIFIED 



Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


10 NCAC 411 .0402 - .0405 






/ 






09/01/94 




.0406 




/ 








09/01/94 




.0407 - .0409 






/ 






09/01/94 




.0410 




/ 




/ 




09/01/94 




.0411 






/ 






09/01/94 




41J .0501 


/ 






/ 




08/02/94 




43 L .0206 - .0209 


/ 






/ 




09/01/94 




46C .0106 




/ 




/ 




08/01/94 




11 NCAC 6A .0802 




/ 




/ 




08/01/94 




12 NCAC 4E .0402 




/ 




/ 




08/01/94 




9B .0101 




/ 








01/01/95 




.0203 




/ 




/ 




01/01/95 




.0205 




/ 




/ 




01/01/95 




.0209 




/ 




/ 




01/01/95 




.0223 




/ 








01/01/95 




.0231 




/ 








01/01/95 




.0312 




/ 








01/01/95 




.0401 




/ 








01/01/95 




.0410 




/ 








01/01/95 




.0413 




/ 








01/01/95 




9C .0215 




/ 








01/01/95 




.0307 




/ 








01/01/95 




.0601 




/ 




/ 




01/01/95 




.0603 




/ 




/ 




01/01/95 




.0604 




/ 








01/01/95 




9E .0103 




/ 








01/01/95 




13 NCAC 6 .0305 




/ 




/ 




08/01/94 




.0402 




/ 




/ 




08/01/94 




.0501 




/ 








08/01/94 




.0505 






/ 






08/01/94 




.0510 




/ 








08/01/94 




.0511 - .0512 






/ 






08/01/94 




.0515 - .0516 




/ 




/ 




08/01/94 





9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



743 







LIST OF RULES CODIFIED 










Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


13 


NCAC 6 


.0519 




/ 








08/01/94 




.0520 






/ 






08/01/94 




.0521 - .0522 




/ 




/ 




08/01/94 




.0525 - .0526 




/ 




/ 




08/01/94 






7F 


.0101 




/ 




/ 




08/01/94 




.0101 




/ 








09/01/94 




.0201 




/ 




/ 




08/01/94 




.0301 




/ 




/ 




08/01/94 




.0501 - .0502 




/ 




/ 




08/01/94 




14A 


NCAC 9A 


.0001 






/ 






08/01/94 






9H 


.0101 






/ 






08/01/94 




.0103 - .0105 






/ 






08/01/94 




.0201 




/ 




/ 




08/01/94 




.0301 - .0303 






/ 






08/01/94 




.0304 


/ 










08/01/94 




.0305 


/ 






/ 




08/01/94 




.0306 


/ 










08/01/94 




.0307 


/ 






/ 




08/01/94 




.0401 - .0402 






/ 






08/01/94 




.0501 - .0504 






/ 






08/01/94 




.0601 - .0605 






/ 






08/01/94 




.0701 






/ 






08/01/94 




.0703 - .0704 






/ 






08/01/94 




.0801 - .0805 






/ 






08/01/94 




.0901 - .0905 






/ 






08/01/94 




.1001 - .1003 






/ 






08/01/94 




15A 


NCAC U 


.0701 




/ 




/ 




08/01/94 






2B 


.0303 




/ 




/ 




08/01/94 






2D 


.0524 










/ 






.0601 










/ 






.0907 










/ 






.0928 










/ 






.0933 










/ 








744 


9:10 


NC 


WTHC 


AROLI1 


VA REC 


USTER 




Aug 


ust 15, 1994 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


15A NCAC 2Q .0102 










/ 






.0203 










/ 






.0206 - .0207 










/ 






.0401 










/ 






.0507 










/ 






.0510 










/ 






.0516 










/ 






.0602 










/ 






19A NCAC 3B .0703 




/ 




/ 




08/01/94 




.0704 




/ 








08/01/94 




31 .0501 




/ 




/ 




08/01/94 




3J .0401 




/ 




/ 




08/01/94 




.0501 




/ 




/ 




08/01/94 




21 NCAC 1 .0101 - .0103 


/ 






/ 




08/01/94 




36 .0226 




/ 








07/25/94 


180 DAYS 



9:10 



NORTH CAROLINA REGISTER 



August IS, 1994 



745 



RRC OBJECTIONS 






1 he Rules Review Commission (RRC) objected to the following rules 


in accordance with G.S. 


143B-30.2(c). State agencies are required to respond to RRC as provided in 


G.S. 143B-30.2(d). 




COMMERCE 






Energy 






4 NCAC 12C .0007- Institutional Conservation Program 


RRC Objection 


06/16/94 


ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 






Departmental Rules 






15A NCAC U .0303 - Fding of Required Supplemental Information 


RRC Objection 


06/16/94 


Agency Revised Rule 


Obj. Removed 


06/16/94 


15 A NCAC IJ .0701 - Public Necessity: Health: Safety and Welfare 


RRC Objection 


06/16/94 


Agency Revised Rule 


RRC Objection 


06/16/94 


15 A NCAC 1L .0302 - General Provisions 


RRC Objection 


06/16/94 


Agency Revised Rule 


Obj. Removed 


06/16/94 


15 A NCAC 1L .0602 - Public Health Need 


RRC Objection 


06/16/94 


Agency Revised Rule 


Obj. Removed 


06/16/94 


Environmental Health 






15A NCAC 18A .2610 - Storage: Handling: and Display of Food 


RRC Objection 


06/16/94 


Agency Revised Rule 


Obj. Removed 


06/16/94 


15A NCAC 18A .2645 - Requirements for Limited Food Service Establishments 


RRC Objection 


06/16/94 


Agency Revised Rule 


Obj. Removed 


06/16/94 


15A NCAC 18C .0202 - Removal of Dissolved Matter and Suspended Matter 


RRC Objection 


06/16/94 


Agency Revised Rule 


Obj. Removed 


06/16/94 


15 A NCAC 18C .0203 - Public Well Water Supplies 


RRC Objection 


06/16/94 


Agency Revised Rule 


Obj. Removed 


06/16/94 


15 A NCAC 18C .0402 - Water Supply Wells 


RRC Objection 


06/16/94 


Agency Revised Rule 


Obj. Removed 


06/16/94 


15 A NCAC 18C .0403 - Surface Water Facilities 


RRC Objection 


06/16/94 


Agency Revised Rule 


Obj. Removed 


06/16/94 


15 A NCAC 18C .0404 - Water Treatment Facilities 


RRC Objection 


06/16/94 


Agency Revised Rule 


Obj. Removed 


06/16/94 


15A NCAC 18C .0405 - Storage of Finished Water 


RRC Objection 


06/16/94 


Agency Revised Rule 


Obj. Removed 


06/16/94 


15 A NCAC 18C .0710 - Other Water Treatment Plants 


RRC Objection 


06/16/94 


Agency Revised Rule 


Obj. Removed 


06/16/94 


15 A NCAC 18C .0711 - Alternative Fdtration Treatment Technologies 


RRC Objection 


06/16/94 


Agency Revised Rule 


Obj. Removed 


06/16/94 


15 A NCAC 18C .0714 - Pilot Plant Studies 


RRC Objection 


06/16/94 


Agency Revised Rule 


Obj. Removed 


06/16/94 


15 A NCAC 18C .0802 - Capacities: Determining Peak Demand 


RRC Objection 


06/16/94 


Agency Revised Rule 


Obj. Removed 


06/16/94 


15 A NCAC 18C .0803 - Capacities: Determining Total Volume 


RRC Objection 


06/16/94 


Agency Revised Rule 


Obj. Removed 


06/16/94 


15 A NCAC 18C .0805 - Capacities: Elevated Storage 


RRC Objection 


06/16/94 


746 9:10 NORTH CAROLINA REGISTER 


August 


15, 1994 



RRC OBJECTIONS 



Agency Revised Rule Obj. Removed 06/16/94 

15A NCAC 18C . 1002 - Disinfection of Wells RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

15A NCAC 18C . 1004 - Disinfection of Filters RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

ISA NCAC 18C . 1102 - Authorized Persons Within Watershed Area RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

ISA NCAC 18C . 1209 - Untreated Domestic Sewage or Industrial Wastes RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

ISA NCAC 18C . 1406 - Control of Treatment Process RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

ISA NCAC 18C . 1511 - Concentration of Iron RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

ISA NCAC 18C . 1512 - Concentration of Manganese RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 

15A NCAC 18C .1533 -Total Trihalomethanes Sampling/ Analysis: < 10,000 RRC Objection 06/16/94 

Agency Revised Rule Obj. Removed 06/16/94 



Environmental Management 



ISA NCAC 2D .0101 - Definitions 

Agency Revised Rule 
ISA NCAC 2D .0932 - Gasoline Truck Tanks and Vapor Collection Systems 

Agency Revised Rule 



RRC Objection 06/16/94 

Obj. Removed 06/16/94 

RRC Objection 06/16/94 

Obj. Removed 06/16/94 



Wildlife Resources and Water Safety 



ISA NCAC WD .0002 - General Regulations Regarding Use 

Agency Revised Rule 
15A NCAC 10H .0101 - License to Operate 

Agency Revised Rule 



RRC Objection 06/16/94 

Obj. Removed 06/16/94 

RRC Objection 06/16/94 

Obj. Removed 06/16/94 



HUMAN RESOURCES 
Facility Services 

10 NCAC 3E .0201 - Building Code Requirements 

Agency Revised Rule 
10 NCAC 3E .0206 - Elements and Equipment 

Agency Revised Rule 
10 NCAC 3R .4206 - Accessibility 

Agency Revised Rule 
10 NCAC 3U .0713 - Staff/Child Ratios for Medium and Large Centers 

Agency Revised Rule 

Mental Health, Developmental Disabilities and Substance Abuse Services 

10 NCAC 45G .0139 - Security Requirements Generally 
Agency Revised Rule 

Mental Health: General 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 



06/16/94 
06/16/94 
06/16/94 
06/16/94 
06/16/94 
06/16/94 
06/16/94 
06/16/94 



06/16/94 
06/16/94 



10 NCAC 14C .1148- Thomas S. Community Services 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



06/16/94 
06/16/94 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



747 



RRC OBJECTIONS 



RRC Objection 06/16/94 

Obj. Removed 06/16/94 

RRC Objection 06/16/94 

Obj. Removed 06/16/94 



RRC Objection 
Obj. Removed 



06/16/94 
06/16/94 



RRC Objection 06/16/94 

Obj. Removed 06/16/94 

RRC Objection 06/16/94 

Obj. Removed 06/16/94 



Mental Health: MR Centers 

10 NCAC 16A .0402 - Explanation of Terms 
Agency Revised Rule 

10 NCAC 16A .0403 - Designation Procedures 

Agency Revised Rule 

INDEPENDENT AGENCIES 

State Health Plan Purchasing Alliance Board 

24 NCAC 5 .0302 - Designation Process 
Agency Revised Rule 

INSURANCE 

Multiple Employer Welfare Arrangements 

11 NCAC 18 .0019 - "Qualified Actuary"; Maximum Net Retention Fding 

Agency Revised Rule 

11 NCAC 18 .0021 - Certification of Reserves Fding 

Agency Revised Rule 

JUSTICE 

Criminal Justice Education and Training Standards 

12 NCAC 9B .0208 - Basic Training - Probation/Parole Officers 
Private Protective Services 

12 NCAC 7D .1101 - Definitions 

Agency Revised Rule 
12 NCAC 7D .1104- Training and Supervision Required in Level Three 

Agency Revised Rule 

LICENSING BOARDS AND COMMISSIONS 
Board of Nursing 

21 NCAC 36 .0211 - Examination 

Agency Revised Rule 
21 NCAC 36 .0218 - Licensure Without Examination (By Endorsement) 

Agency Revised Rule 

Professional Counselors 

21 NCAC 53 .0103 - Purpose of Organization 

Agency Repealed Rule 
21 NCAC 53 .0104 - Organization of the Board 

Agency Repealed Rule 
21 NCAC 53 .0201 - Supervision 

Agency Repealed Rule 
21 NCAC 53 .0303 - Work Experiences 

Agency Repealed Rule 



RRC Objection 07/14/94 



RRC Objection 06/16/94 

Obj. Removed 06/16/94 

RRC Objection 06/16/94 

Obj. Removed 06/16/94 



RRC Objection 06/16/94 

Obj. Removed 06/16/94 

RRC Objection 06/16/94 

Obj. Removed 06/16/94 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



06/16/94 
06/16/94 
06/16/94 
06/16/94 
06/16/94 
06/16/94 
06/16/94 
06/16/94 



748 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



RRC OBJECTIONS 



U NCAC 53 .0305 - Exemption from Academic Qualification 

Rule Withdrawn by Agency 
11 NCAC 53 .0503 - Renewal Fee 

Agency Revised Rule 



06/16/94 
RRC Objection 06/16/94 
Obj. Removed 06/16/94 



REVENUE 

Sales and Use Tax 

17 NCAC 7B .2608 - Plumbing: Heating: Air Cond/Bec Contractors: Purchases RRC Objection 05/19/94 

Rule Returned to Agency 06/16/94 

17 NCAC 7B . 2609 - Plumbing: Heating: Air Cond/Bec Contractors: Sales RRC Objection 05/19/94 

Rule Returned to Agency 06/16/94 

17 NCAC 7B .5462 - White Goods Disposal Tax Report Form: E-500W RRC Objection 05/19/94 

Rule Returned to Agency 06/16/94 

17 NCAC 7B .5464 - Ice Certificate Form: E-599Y RRC Objection 05/19/94 

Rule Returned to Agency 06/16/94 

TRANSPORTATION 
Division of Motor Vehicles 



19A NCAC 31 .0307 - Courses of Instruction 

Agency Revised Rule 
19A NCAC 31 .0501 - Requirements 

Rule Withdrawn by Agency 



RRC Objection 
Obj. Removed 



06/16/94 
06/16/94 

06/16/94 






9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



749 



CONTESTED CASE DECISIONS 



I his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



ADMINISTRATION 

North Carolina Council for Women 

Family Violence Prevention Services v. N.C. Council for Women 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Comm. v. Entertainment Group, Inc. 

Rayvon Stewart v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Comm. v. Branch land. Inc. 

Alcoholic Beverage Control Comm. v. Peggy Sutton Walters 

Russell Bernaid Speller d/b/a Cat's Disco v. Alcoholic Bev Cll Comm. 

Alcoholic Beverage Control Comm. v. Branch land. Inc. 

Edwaid Ogunjobi, Club Piccadilli v. Alcoholic Beverage Control Comm. 

Robert Kovalaske, Nick Pikoulas, Joseph Marshbum, Evangelos Pikoulas, 

d/b/a Our Mom's BBQ v. Alcoholic Beverage Control Commission 
Christine George William* v. Alcoholic Beverage Control Comm. 
Lynn Ann Garfagna v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm. v. Raleigh Limib, Inc. 
Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. 

Mr. & Mra. Josh Bullock Jr. v. Alcoholic Beverage Control Comm. 
Jerome Crawford v. Alcoholic Beverage Control Commission 
Roy Dale Cagle v. Alcoholic Beverage Control Commission 

COMMERCE 



COLAP Enterprises, Inc. 
Mitch's Tavern, Inc. 
Ms. Lucy Jarrell Powell 
Daphne Ann Harrell 



CASE 
NUMBER 



94 DOA 0242 



ALJ 



BATE OF 
DECISION 



West 



04/13/94 



93 ABC 0719 


Gray 


03/02/94 


93 ABC 0793 


Nesnow 


04/11/94 


93 ABC 0892 


Morgan 


06/03/94 


93 ABC 0906 


Mann 


03/18/94 


93 ABC 0937 


Morrison 


03/07/94 


93 ABC 0993 


Morgan 


06/03/94 


93 ABC 1024 


West 


03/03/94 


93 ABC 1029 


Gray 


03/04/94 


93 ABC 1057 


Becton 


04/21/94 


93 ABC 1481 


Gray 


07/19/94 


93 ABC 1485 


Mann 


03/11/94 


94 ABC 0060 


Nesnow 


06/07/94 


94 ABC 0064 


Gray 


07/26/94 


94 ABC 0070 


Morgan 


06/06/94 


94 ABC 0115 


Nesnow 


07/18/94 


94 ABC 0124 


Morgan 


06/06/94 


94 ABC 0125 


Morgan 


06/06/94 


94 ABC 0260 


West 


07/13/94 



PUBLISHED DECISION 
REGISTER CITATION 



Savings Institutions Division 

James E. Byere, et al v. Savings Institutions 

CORRECTION 



93 COM 1622 Chess 



03/01/94 



Division of Prisons 

Gene Strader v. Department of Correction 

CRIME CONTROL AND PUBLIC SAFETY 



94 DOC 0252 



Morrison 03/21/94 



Joseph Guernsey & brents, Robert Guernsey & Dolores Guernsey 
v. Pin County Hospital Eastern Radiologists 

Crime Victims Compensation Commission 

James Hugh Baynes v. Crime Victims Compensation Commission 

Ross T. Bond v. Victims Compensation Commission 

James A. Canady v. Crime Victims Compensation Commission 

Virginia Roof v. Department of Crime Control & Public Safety 

Karen C. Tilghman v. Crime Victims Compensation Commission 

Rosemary Taylor v. Crime Victims Compensation Commission 

Violet E. Kline v. Crime Victims Compensation Commission 

James Benton v. Crime Victims Compensation Commission 

Percy Clark v. Crime Victims Compensation Commission 

J. Richard Spencer v. Crime Victims Compensation Commission 



94 CPS 0413 



Gray 



07/11/94 



93 CPS 0801 


West 


03/28/94 


9:2 NCR 


114 


93 CPS 1104 


West 


04/21/94 






93 CPS 1108 


Gray 


03/28/94 






93 CPS 1347 


Nesnow 


03/24/94 






93 CPS 1608 


Reilly 


05/17/94 


9:6 NCR 


407 


93 CPS 1626 


Nesnow 


05/25/94 






93 CPS 1670 


Morgan 


06/13/94 






94 CPS 0034 


Chess 


06/14/94 






94 CPS 0127 


Reilly 


04/19/94 






94 CPS 0157 


Chess 


06/14/94 







750 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



CONTESTED CASE DECISIONS 








CASE 




DATE OF 


PUBLISHED DECISION 


AGENCY 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


Barbara Henderson v. Crime Victims Compensation Commission 


94 CPS 0259 


Morrison 


04/07/94 




Shirley Handsome v. Crime Victims Compensation Commission 


94 CPS 0286 


Gray 


04/28/94 




Gcorgeann Young v. Crime Victims Compensation Commission 


94 CPS 0292 


Rcilly 


04/18/94 




Lawrence L. Tyson v. Crime Victims Compensation Commission 


94 CPS 0368 


Gray 


04/26/94 




Lyman L. Chapman v. Crime Victims Compensation Commission 


94 CPS 0415 


Chess 


06/02/94 




Douglas and Virginia Wilson v. Crime Victims Compensation Coram. 


94 CPS 0417 


Reilly 


06/07/94 




Michelle L. Wilcox v. Crime Victims Compensation Commission 


94 CPS 0467 


Reilly 


06/07/94 




Michael G. Low v. Crime Victims Compensation Commission 


94 CPS 0524 


Morrison 


06/13/94 




Mary E. Haskins v. Crime Victims Compensation Commission 


94 CPS 1406 


Gray 


03/17/94 





ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 



Ron D. Graham, Suzanne C. Graham v. Robert Cobb, Mecklenburg Cty 

Patricia D. Solomon v. Macon County Health Department 

Kathryn A. Whitley v. Macon County Health Department 

Brook Hollow Estates v. Environment, Health, & Natural Resources 

Oceanfront Court, David C. Gagnon v. Environment, Health, & Nat. Res. 

Sam's Club #8219 v. Mecklenburg County Health Department 

Eugene Crawford & Nancy P. Crawford v. Macon County Health Dept. 

Tri-CircuiB, Inc. v. Environment, Health, & Natural Resources 



93 EHR 1017 


Bee ton 


05/31/94 


93 EHR 1777 


West 


05/23/94 


94 EHR 0088 


West 


07/13/94 


94 EHR 0093 


West 


06/03/94 


94 EHR 0210 


Chess 


06/21/94 


94 EHR 0329 


Nesnow 


06/15/94 


94 EHR 0500 


Gray 


06/10/94 


94 EHR 0601 


Morrison 


06/30/94 



9:7 NCR 496 



Coastal Management 



Roger Fuller v. EHNR, Divs. of Coastal Mgmt & Environmental Mgmt 
Roger Fuller v. EHNR, Divs. of Coastal Mgmt & Environmental Mgmt 
Gary E. Montalbine v. Division of Coastal Management 
Paley-Midgett Partnership v. Coastal Resources Commission 



89 EHR 1378" 2 Gray 04/07/94 

90 EHR 0017* Gray 04/07/94 

93 EHR 1792 Nesnow 03/21/94 

94 EHR 0315 Gray 06/01/94 



Environmental Health 



Jane C. 0"Malley, Melvin L. Cartwright v. EHNR & District Hlth Dept 

Pasquotank-Pcrquimans-Camden-Chowan 
Henry Lee Bulluck v. Nash County Health Department & EHNR 
Environment, Health, & Natural Res. v. Clark Harris & Jessie Lee Harris 
Richard F. Ebersold v. Jackson County Health Department & EHNR 
Sidney S. Tate Jr. v. Dept. of Environment, Health, & Natural Resources 
Scotland Water Co., Laurin Lakes v. Environment, Health, & Nat. Res. 
H.A. Lcntz v. Department of Environment, Health, & Natural Resources 
Floyd Benn Williams v. Dept. of Environment, Health, & Nat. Res. 



91 EHR 0838 


Becton 


04/06/94 


93 EHR 0348 


Morgan 


07/22/94 


93 EHR 0924 


Becton 


03/03/94 


93 EHR 1391 


Chess 


06/24/94 


94 EHR 0005 


Reilly 


05/24/94 


94 EHR 0200 


Nesnow 


04/27/94 


94 EHR 0235 


Nesnow 


07/19/94 


94 EHR 0333 


Reilly 


05/18/94 



Environmental Management 

David Springer v. Dept. of Environment, Health, & Natural Resources 92 EHR 1797 Morgan 05/19/94 

Petroleum Installation Equipment Co., Inc. v. Env., Health & Nat. Res. 93 EHR 0531 Chess 03/21/94 

Jack Griffin v. Dept. of Environment, Health, and Natural Resources 93 EHR 1030 Becton 03/21/94 

Land Resources 

Town of Kernersville (LQS 93-053) v. Environment, Health, & Nat. Res. 93 EHR 1781 Chess 06/29/94 

Royce Perry, Paul Perry v. Dept. of Environment, Health, & Natural Res. 94 EHR 0525 Gray 07/01/94 

Marine Fisheries 



9:8 NCR 581 



Robert I. Swinson, Virginia S. Swinson v. EHNR, Div/Marine Fisheries 
Larry J. Batson v. Division of Marine Fisheries 
David W Oglesby v. Division of Marine Fisheries 
David E. Oglesby v. Division of Marine Fisheries 
James Goodman v. EHNR, Division of Marine Fisheries 

Solid Waste Management 

Roger Sessoms v. EHNR/ Asbestos Hazard Management Branch 



93 EHR 0394 


Gray 


04/11/94 






93 EHR 0857 


Morgan 


07/22/94 






93 EHR 0930* 


West 


07/25/94 


9:10 NCR 


758 


93 EHR 0931* 


West 


07/25/94 


9:10 NCR 


758 


94 EHR 0035 


Nesnow 


07/18/94 


9:9 NCR 


660 



93 EHR 0951 Gray 



03/28/94 



* Consolidated Cases. 






9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



751 



CONTESTED CASE DECISIONS 



AGENCY 



Bertie Citizens Action Coalition, Inc.; Willaid J. Oliver, Reginald Early, 
Herbert Jenkins, Jr., Lindwod Earl Tripp, Willie Warren Tripp, Mary 
Alice Cherry, and Kathy Burden v. EHNR, Solid Waste Management 
Division, and East Carolina Environmental, Inc., Addington Environmental, 
Inc., et al. 



CASE 
NUMBER 



93 EHR 1045 



AU 



DATE OF 

DECISION 



Morrison 04/06/94 



HUMAN RESOURCES 

Brenda C. Robinson v. Department of Human Resources 
Betty Rhodes v. Department of Human Resources 

Distribution Child Support 

Jachell D. Parker v. Department of Human Resources 

Division of Child Development 

Judith Fridley v. Div. of Child Development/Abuse/Neglect Unit 

DHR, Division of Child Development v. Joyce Gale 

Laureen Holt, ID#26-0-00037 v. DHR, Div. of Child Development 

Gloria C. Haith v. Department of Human Resources 

Gloria C. Haith v. Daycare Consultant 

Charles E. Smith v. Department of Human Resources 

Scott's Loving Day Care & Nursery, Mrs. Willie L. Scott v. DHR 

Belinda K. Mitchell v. Human Resources, Div. of Child Development 

Living Word Day Care, Jonathan Lankford v. Dept. of Human Resources 

Facility Services 

Charles E. Hunter, Jr., M.D. & Coastal Perfusion Svcs, Inc. v. Cert of 
Need Section, Div of Facility Svcs, DHR, and Wilmington Perfusion 
Corp, and Howard E MarkB, Jr., M.D. 

Presbyterian- Orthopaedic Hospital v. Department of Human Resources 

Judy Hoben Wallace v. Department of Human Resources 

Lowell Stafford v. Department of Human Resources 

Division of Medical Assistance 

J.R., by and through her agent & Personal Rep., Hank Neal v. DHR 
David Yott v. Department of Human Resources 

Division of Medical Assistance v. Catawba Cry Dept. of Social Services 
Lu Ann Leidy, MD/Dorothea Dix Hosp. Child & Youth v. Medical Assis. 

Division of Social Services 

Evelyn Moore v. Department of Human Resources 

Nathaniel Harrell, Annie Harrell v. Department of Social Services 

Child Support Enforcement Section 

Dalton Felton Sr v. Department of Human Resources 
William Heckstall v. Department of Human Resources 
Luther Hatcher v. Department of Human Resources 
Bryan Jeffrey Cole v. Department of Human Resources 
Anthony E. Bullari v. Department of Human Resources 
Dexter L. ChambetB v. Department of Human Resources 
Ronald E. Johnson v. Department of Human Resources 
Roger Moore v. Department of Human Resources 
Alvin Lee Martin v. Department of Human Resources 
Robert Young v. Department of Human Resources 
Henry M. Dillaid v. Department of Human Resources 
Antonio Townsend v. Department of Human Resources 
Keith M. Gray v. Department of Human Resources 
Troy E. Pinkney v. Department of Human Resources 
Anthony A. Macon v. Department of Human Resources 
Walter Lee Corbett v. Department of Human Resources 
Joseph E. Kernstine v. Department of Human Resources 
Joe Louis Mayo v. Department of Human Resources 



94 DHR 0365 
94 DHR 0501 



West 06/01/94 

Morrison 06/02/94 



93 DCS 0371 Morgan 07/14/94 



93 DHR 0973 


Morrison 


03/08/94 


93 DHR 1344 


Gray 


04/28/94 


93 DHR 1549 


Becton 


07/13/94 


93 DHR 1707 


Nesnow 


03/22/94 


93 DHR 1787 


Nesnow 


03/14/94 


93 DHR 1797 


Nesnow 


03/21/94 


94 DHR 0106 


Nesnow 


06/29/94 


94 DHR 0119 


Reilly 


06/30/94 


94 DHR 0168 


Nesnow 


03/23/94 



93 DHR 0746 


Morgan 


04/11/94 


93 DHR 0805 


Reilly 


03/11/94 


93 DHR 0935 


Gray 


05/23/94 


93 DHR 1381 


Gray 


04/15/94 



93 DHR 0528 


Gray 


04/27/94 


93 DHR 1113 


Gray 


04/05/94 


93 DHR 1778 


West 


03/04/94 


94 DHR 0448 


Chess 


06/21/94 



94 DHR 0293 
94 DHR 0440 



Reilly 
Gray 



04/15/94 
06/27/94 



92 CSE 0532 


Morgan 


07/13/94 


93 CSE 1077 


Reilly 


03/14/94 


93 CSE 1082 


Mann 


05/24/94 


93 CSE 1091 


Bee Ion 


03/30/94 


93 CSE 1094 


Nesnow 


06/13/94 


93 CSE 1124 


West 


03/28/94 


93 CSE 1125 


Becton 


03/30/94 


93 CSE 1127 


Becton 


04/14/94 


93 CSE 1128 


Nesnow 


04/04/94 


93 CSE 1133 


Reilly 


04/18/94 


93 CSE 1135 


Nesnow 


06/13/94 


93 CSE 1 139 


Becton 


03/30/94 


93 CSE 1140 


Nesnow 


06/28/94 


93 CSE 1148 


Mann 


03/29/94 


93 CSE 1149 


Gray 


04/26/94 


93 CSE 1150 


Reilly 


03/30/94 


93 CSE 1151 


Morgan 


07/15/94 


93 CSE 1161 


West 


04/19/94 



PUBLISHED DECISION 
REGISTER CITATION 



9:3 NCR 214 



752 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



Bobty Lewis Smith v. Department of Human Resources 

Louis C. Cade v. Department of Human Resources 

Richard J. Swarm v. Department of Human Resources 

Nash Andrew Newsome v. Department of Human Resources 

James E. Watson v. Department of Human Resources 

Robert Lee Barrett v. Department of Human Resources 

Betty A. Williams, Fred E. Jones v. Department of Human Resources 

Jeff A. Taylor v. Department of Human Resources 

Eric G. Syk.es v. Department of Human Resources 

Morris Ray Bethel v. Department of Human Resources 

Willie C. Hollis v. Department of Human Resources 

Ernest N. Pruitt Jr. v. Department of Human Resources 

Bernadetfc Cook v. Department of Human Resources 

Lem Person v. Department of Human Resources 

Bobby Lee McCullers Jr. v. Department of Human Resources 

Randall R. Rhodes v. Department of Human Resources 

Michael V. Docker, v. Department of Human Resources 

Floyd E. Bailey v. Department of Human Resources 

Dennis W. Nolan v. Department of Human Resources 

Robert Calvin Connor v. Department of Human Resources 

James D. Williams v. Department of Human Resources 

Marty Franzen v. Department of Human Resources 

Vaughn D. Peansall v. Department of Human Resources 

Larry D. Dawson v. Department of Human Resources 

McDaniel Teeter Jr. v. Department of Human Resources 

King D. Graham v. Department of Human Resources 

Derek WatBon v. Department of Human Resources 

Luther Borden v. Department of Human Resources 

Walter B. Lester v. Department of Human Resources 

Larry Cornelius Smith v. Department of Human Resources 

Robert C. Lee Jr. v. Department of Human Resources 

Sidney Ray Tuggle Jr. v. Department of Human Resources 

Michael A. Amos v. Department of Human Resources 

Gregory N. Winlcy v. Department of Human Resources 

Ronald Brown v. Department of Human Resources 

James L. Phillips v. Department of Human Resources 

George Aaron Collins v. Department of Human Resources 

Samuel L. Dodd v. Department of Human Resources 

William A. Sellers v. Department of Human Resources 

Jerry Mclver v. Department of Human Resources 

Johnny B. Little v. Department of Human Resources 

Kenneth W. Cooper v. Department of Human Resources 

Nathan D. Winston v. Department of Human Resources 

Charles W. Norwood Jr. v. Department of Human Resources 

David L. Terry v. Department of Human Resources 

Audwin Lindsay v. Department of Human Resources 

Steven A. Elmquist v. Department of Human Resources 

Kelvin Dean Jackson v. Department of Human Resources 

Dennis E. Fountain Jr. v. Department of Human Resources 

Mark E. Rogers v. Department of Human Resources 

Edna Von Cannon v. Department of Human Resources 

Thomas A. Ayers v. Department of Human Resources 

Daniel Thomas Hefele v. Department of Human Resources 

Gilbert J. Gutierrez v. Department of Human Resources 

Alton D. Johnson v. Department of Human Resources 

Darryl C. Thompson v. Department of Human Resources 

Chester Sanders v. Department of Human Resources 

Rodney Guyton v. Department of Human Resources 

Donald W. Clark v. Department of Human Resources 

William E. David Jr. v. Department of Human Resources 

John J. Gabriel v. Department of Human Resources 

Robert Hayes v. Department of Human Resources 

Clark Anthony Bryant v. Department of Human Resources 

Timothy D. Evans v. Department of Human Resources 

Billy Edward Smith v. Department of Human Resources 

Allen D. Terrell v. Department of Human Resources 

Ray C. Moses v. Department of Human Resources 

Mickey Bridgett v. Department of Human Resources 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION REGISTER CITATION 


93 CSE 1162 


Nesnow 


06/16/94 


93CSE 1166 


Morrison 


06/16/94 


93 CSE 1167 


Reilly 


06/17/94 


93 CSE 1170 


Mann 


03/17/94 


93 CSE 1171 


Gray 


04/26/94 


93 CSE 1172 


Morrison 


04/20/94 


93 CSE 1178 


Nesnow 


04/20/94 


93 CSE 1180 


Morgan 


07/15/94 


93 CSE 1181 


Bee ton 


04/20/94 


93 CSE 1 188 


West 


07/11/94 


93 CSE 1191 


Bee ton 


05/09/94 


93 CSE 1197 


Nesnow 


06/28/94 


93 CSE 1202 


Gray 


04/27/94 


93 CSE 1214 


Morrison 


06/16/94 


93 CSE 1215 


Reilly 


06/17/94 


93 CSE 1219 


Nesnow 


06/16/94 


93 CSE 1222 


Morgan 


07/15/94 


93 CSE 1227 


Mann 


07/07/94 


93 CSE 1254 


Morrison 


04/27/94 


93 CSE 1258 


West 


04/19/94 


93 CSE 1259 


West 


04/19/94 


93 CSE 1264 


Morgan 


07/15/94 


93 CSE 1267 


Bee ton 


04/20/94 


93 CSE 1273 


Morrison 


07/07/94 


93 CSE 1274 


Morrison 


06/30/94 


93 CSE 1275 


Bee ton 


05/18/94 


93 CSE 1283 


Reilly 


06/30/94 


93 CSE 1284 


West 


06/23/94 


93 CSE 1287 


Nesnow 


06/28/94 


93 CSE 1302 


Morrison 


06/30/94 


93 CSE 1303 


Reilly 


06/30/94 


93 CSE 1307 


West 


04/25/94 


93 CSE 1308 


West 


07/15/94 


93 CSE 1316 


Bee ton 


06/14/94 


93 CSE 1318 


Becton 


06/29/94 


93 CSE 1326 


Reilly 


06/17/94 


93 CSE 1331 


West 


04/25/94 


93 CSE 1357 


Gray 


03/31/94 


93 CSE 1359 


Morrison 


04/20/94 


93 CSE 1362 


Reilly 


06/30/94 


93 CSE 1363 


Weat 


06/23/94 


93 CSE 1364 


West 


04/27/94 


93 CSE 1365 


Nesnow 


07/07/94 


93 CSE 1385 


West 


06/13/94 


93 CSE 1386 


Mann 


05/18/94 


93 CSE 1390 


Morrison 


07/15/94 


93 CSE 1392 


Reilly 


04/29/94 


93 CSE 1394 


West 


06/13/94 


93 CSE 1414 


Chess 


05/13/94 


93 CSE 1415 


Mann 


05/03/94 


93 CSE 1417 


Morrison 


06/14/94 


93 CSE 1431 


Morrison 


06/30/94 


93 CSE 1432 


Morrison 


04/28/94 


93 CSE 1433 


Morrison 


05/13/94 


93 CSE 1434 


Reilly 


04/29/94 


93 CSE 1435 


Reilly 


06/30/94 


93 CSE 1437 


West 


04/19/94 


93 CSE 1439 


West 


04/21/94 


93 CSE 1441 


Nesnow 


05/13/94 


93 CSE 1442 


Nesnow 


05/02/94 


93 CSE 1452 


Chess 


05/16/94 


93 CSE 1453 


Mann 


07/07/94 


93 CSE 1455 


Gray 


06/30/94 


93 CSE 1460 


Reilly 


04/28/94 


93 CSE 1461 


West 


04/19/94 


93 CSE 1463 


Nesnow 


05/02/94 


93 CSE 1464 


Nesnow 


04/28/94 


93 CSE 1468 


Becton 


05/24/94 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



753 



CONTESTED CASE DECISIONS 



AGENCY 



Bart Ransom v. Department of Human Resources 
William H. Simpson Sr. v. Department of Human Resources 
James D. McClure Jr. v. Department of Human Resources 
Christopher Ivan Smith v. Department of Human Resources 
Douglas L. Cherrix v. Department of Human Resources 
Dwayne Lamont Thompson v. Department of Human Resources 
Horace Lee Bass v. Department of Human Resources 
Michael Wilder v. Department of Human Resources 
James A. Cephas v. Department of Human Resources 
Fu.iu.anJ E. Furr v. Department of Human Resources 
Mark E. Campbell v. Department of Human Resources 
Barriet Easterling v. Department of Human Resources 
Wade A. Burgess v. Department of Human Resources 
Billy Dale Beaney v. Department of Human Resources 
James E. Wiggins Sr. v. Department of Human Resources 
Tony A. Draughon v. Department of Human Resources 
Timothy J. Jones v. Department of Human Resources 
Randall E. Hunter v. Department of Human Resources 
Cyrus R. Luallen v. Department of Human Resources 
Alton E. Simpson Jr. v. Department of Human Resources 
Johnny T. Usher v. Department of Human Resources 
Tim H. Maxwell v. Department of Human Resources 
Charles Darrell MatthewB v. Department of Human Resources 
John William Vance Jr. v. Department of Human Resources 
Bobby R. Sanders v. Department of Human Resources 
Michael S. Rhynes v. Department of Human Resources 
Brian Gilmore v. Department of Human Resources 
Jesse Jeremy Bullock v. Department of Human Resources 
Ronald E. Loweke v. Department of Human Resources 
Robert D. I^rker v. Department of Human Resources 
Charles E McKirahan Jr. v. Department of Human Resources 
Bennie E. Hicks v. Department of Human Resources 
Herbert Council v. Department of Human Resources 
Benjamin J. Stroud v. Department of Human Resources 
Charles Leonard Fletcher v. Department of Human Resources 
Tony A. Miles v. Department of Human Resources 
Dwayne L. Allen v. Department of Human Resources 
Joe C. Dean v. Department of Human Resources 
Vernon Bullock v. Department of Human Resources 
Raymond Scott Eaton v. Department of Human Resources 
Royston D. Bland ford III v. Department of Human Resources 
Daron Wayne Smith v. Department of Human Resources 
John D. Melton v. Department of Human Resources 
Richard Eugene Dunn v. Department of Human Resources 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


93 CSE 1495 


Morrison 


04/29/94 


93 CSE 1497 


West 


04/19/94 


93 CSE 1500 


Becton 


05/13/94 


93 CSE 1510 


Gray 


07/07/94 


93 CSE 1512 


Gray 


05/13/94 


93 CSE 1515 


Morrison 


04/21/94 


93 CSE 1520 


MorriBon 


05/13/94 


93 CSE 1521 


Reilly 


04/28/94 


93 CSE 1523 


Reilly 


05/13/94 


93 CSE 1524 


Reilly 


06/17/94 


93 CSE 1537 


Nesnow 


05/19/94 


93 CSE 1560 


Mann 


05/18/94 


93 CSE 1568 


Morrison 


04/28/94 


93 CSE 1569 


Morrison 


05/13/94 


93 CSE 1571 


Morrison 


05/13/94 


93 CSE 1572 


Reilly 


07/07/94 


93 CSE 1576 


West 


04/19/94 


93 CSE 1579 


West 


04/19/94 


93 CSE 1583 


Nesnow 


06/16/94 


93 CSE 1591 


Becton 


04/20/94 


93 CSE 1592 


Chess 


05/19/94 


93 CSE 1594 


Chess 


06/30/94 


93 CSE 1596 


West 


06/13/94 


93 CSE 1597 


Becton 


05/13/94 


93 CSE 1598 


Nesnow 


07/25/94 


93 CSE 1599 


Nesnow 


06/30/94 


93 CSE 1615 


Chess 


05/13/94 


93 CSE 1632 


Morrison 


06/14/94 


93 CSE 1635 


Reilly 


06/17/94 


93 CSE 1637 


Reilly 


06/29/94 


93 CSE 1640 


West 


06/14/94 


93 CSE 1641 


Nesnow 


07/25/94 


93 CSE 1643 


Nesnow 


07/25/94 


93 CSE 1648 


Becton 


05/19/94 


93 CSE 1649 


Becton 


07/20/94 


93 CSE 1654 


Mann 


05/24/94 


93 CSE 1655 


Mann 


05/17/94 


93 CSE 1715 


Gray 


05/23/94 


93 CSE 1743 


Nesnow 


07/07/94 


93 CSE 1761 


Becton 


06/29/94 


94 CSE 0095 


West 


04/19/94 


94 CSE 0300 


Gray 


06/27/94 


94 CSE 0324 


Nesnow 


07/25/94 


94 CSE 0494 


West 


07/29/94 



PUBLISHED DECISION 
REGISTER CITATION 



JUSTICE 



Alarm Systems Licensing Board 

Alarm Systems Licensing Boaid v. George P. Baker 

Private Protective Services Board 



93 DOJ 0457 



Nesnow 



03/10/94 



Rex Allen Jefferies v. Private Protective Services Boaid 
Larry C. Hopkins v. Private Protective Services Boaid 
Gregory K. BrookB v. Private Protective Services Boaid 
Stephen M. Rose v. Private Protective Services Boaid 
Lemuel Lee Clark Jr. v. Private Protective Services Board 



93 DOJ 0647 


Reilly 


08/01/94 


93 DOJ 1618 


Morrison 


03/07/94 


94 DOJ 0008 


Nesnow 


06/28/94 


94 DOJ 0359 


Nesnow 


05/19/94 


94 DOJ 0360 


Nesnow 


05/19/94 



Training and Standards Division 



Curtiss Lance Poteat v. Criminal Justice Ed. & Training Stds. Comm. 
Willie David Moore v. Criminal Justice Ed. & Training Slds. Comm. 
Glenn Travis Stout v. Criminal Justice Ed. & Training SldB. Comm. 
Steven W. Wray v. Sheriffs' Education & Training Standaids Comm. 
J. Stevan North v. Sheriffs' Education & Training Standaids Comm. 
Gregory Blake Manning v. Criminal Justice Ed. & Training Slds. Comm. 
William Franklin Sheetz v. Sheriffs' Education & Training Slds. Comm. 



93 DOJ 0231 


Chess 


03/28/94 


93 DOJ 1071 


Nesnow 


04/11/94 


93 DOJ 1409 


Gray 


03/03/94 


93 DOJ 1803 


Chess 


06/29/94 


94 DOJ 0040 


Chess 


06/16/94 


94 DOJ 0048 


Gray 


03/29/94 


94 DOJ 0196 


Chess 


06/16/94 



9:3 NCR 218 



754 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



CONTESTED CASE DECISIONS 



AGENCY 

MORTUARY SCIENCE 

ilortuary Science v. Perry J. Brown, & Brown's Funeral Directors 

UBLIC EDUCATION 

Clancy WatBon v. Board of Education 
fanet L. Wilcox v. Carteret County Board of Education 
4ary Ann Sciullo & Frank Sciullo on behalf of their minor child, 
Samuel W. Sciullo v. State Board of Education 

HATE HEALTH BENEFITS OFFICE 



^inda C. Campbell v. Teachers & St Emp Major Medical Plan 
Timothy L. Coggins v. Teachers' & St Emp Comp Major Med Plan 

fTATE PERSONNEL 

Agricultural and Technical State University 

Linda D. Williams v. Agricultural and Technical State University 
hianita D. Murphy v. Agricultural and Technical State University 
Thomas M. Simpson v. Agricultural and Technical State University 

Department of Agriculture 

Donald H. Crawford v. Department of Agricultuc 

Catawba County 

Sandra J. Cunningham v. Catawba County 

North Carolina Central University 



CASE 
NUMBER 



93 BMS 0532 



ALJ 



Chess 



DATE OF 
DECISION 



03/28/94 



PUBLISHED DECISION 
REGISTER CITATION 



93 EDC 0234 


Chess 


02/28/94 


93EDC0451 


Mann 


02/21/94 


94 EDC 0044 


Gray 


07/22/94 



93 INS 0410 
93 INS 0929 



Becton 
Morrison 



04/22/94 
03/04/94 



93 OSP 0089 
93 OSP 0708 
93 OSP 1393 



Chess 03/23/94 

Morrison 03/16/94 
Gray 03/24/94 



94 OSP 0108 Reilly 05/23/94 



93 OSP 1097 Reilly 04/29/94 



9:2 NCR 108 



9:4 NCR 292 



Ha-Yilyah Ha-She'B v. NCCU 


93 OSP 0875 


Becton 


04/13/94 


9:3 


NCR 


211 


Cherry Hospital 














Charles F. Fields v. Cherry Hospital 


94 OSP 0498 


Morrison 


06/15/94 








Department of Commerce 














Ruth Daniel-Perry v. Department of Commerce 


93 OSP 0725 


Chess 


03/04/94 


9:1 


NCR 


63 


Department of Correction 














Letand K. Williams v. Department of Correction 


91 OSP 1287 


Chess 


02/22/94 








Elroy Lewis v. North Central Area - Dept of Correction, Robert Lewis 


92 OSP 1770 


Becton 


05/24/94 


9:6 


NCR 


395 


Steven R. Kellison v. Department of Correction 


93 OSP 0283 


Chess 


06/15/94 








Bert E8worthy v. Department of Correction 


93 OSP 0711 


Chess 


04/21/94 








Mcrron Burrus v. Department of Correction 


93 OSP 1145 


West 


06/01/94 








Lewis Alsbrook v. Department of Correction, Morrison \buth Institution 


93 OSP 1739 


West 


07/20/94 








Junius C. Page v. Dept. of Correction, Secy. Franklin Freeman 


93 OSP 1794 


Mann 


07/08/94 








Richard Hopkins v. Department of Correction 


94 OSP 0041 


Chess 


06/16/94 








Alfred B. Hunt v. Department of Correction 


94 OSP 0243 


Reilly 


04/20/94 








Charles Home v. Equal Emp. Opportunity Officer & Dept. of Correction 


94 OSP 0244 


Nesnow 


06/16/94 








Adrian E. Graham v. Intensive Probation/Parole 


94 OSP 0261 


Morrison 


04/26/94 








Eastern Correctional Institution 














Roy A. Keel & Zebedee Taylor v. Eastern Correctional Institution 


94 OSP 0160** 


Nesnow 


07/20/94 








Roy A. Keel & Zebedee Taylor v. Eastern Correctional Institution 


94 OSP 0256** 


Nesnow 


07/20/94 








Guilford Correctional Center 














Ann R. Williams v. Guilford Correctional Center #4440 


94 OSP 0428 


West 


06/22/94 








9:10 NORTH CAROLINA REGISTER 


August 15, 1994 






755 



CONTESTED CASE DECISIONS 



ac;ency 

Cosmetic Art Examiners 

Mary QuHiniarwe v. N.C. State Board of Cosmetic Art Examiners 

Department of Crime Control and Public Safety 

Don R. Massenburg v. Department of Crime Control & Public Safety 
Fred L. Kearney v. Department of Crime Control & Public Safety 
Sylvia Nance v. Department of Crime Control & Public Safety 
Lewis G. Baker v. Crime Control & Public Safety, Office Adj. General 

Durham County Health Department 

Lylla Denell Stockton v. Durham County Health Department 

Elizabeth City State University 

James Charles Knox v. Elizabeth City State University 

Employment Security Commission of North Carolina 

Rejeanne B. LeFrancois v. Employment Security Commission of N.C. 

Department of Environment, Health, and Natural Resources 

Division of Marine Fisheries 

William D. Nicely v. Environment, Health, & Natural Resources 

FayetXevilie State University 

Roscoe L. Williams v. Fayetteville State University 

Department of Human Resources 



CASE 
NUMBER 



94 OSP 0372 



ALJ 



Chess 



93 OSP 1780 



94 OSP 0207 



93 OSP 1069 



Gray 



Gray 



West 



92 OSP 1454 



93 OSP 0487 



Bee ton 



West 



93 OSP 0830 
93 OSP 1762 



Bee ton 
Gray 
Gray 
Chess 



DATE OF 
DECISION 



06/14/94 



PUBLISHED DECISION 
REGISTER CITATION 



90 OSP 0239 


Chess 


04/28/94 


91 OSP 0401 


West 


03/18/94 


92 OSP 1463 


Reilly 


03/21/94 


94 OSP 0572 


Mann 


07/12/94 



05/25/94 



06/17/94 



04/08/94 



05/04/94 



06/22/94 



03/28/94 
03/03/94 
05/06/94 
03/16/94 



93 OSP 1606 


Gray 


07/01/94 


93 OSP 1607 


Gray 


07/18/94 


93 OSP 1805 


Reilly 


07/05/94 



Inez Latta v. Department of Human Resources 

Charla S. Davis v. Department of Human Resources 

Rose Mary Taylor v. Department of Human Resources, Murdoch Center 93 OSP 0047 

David R. Rodgers v. Jimmy Summerville, Stonewall JackBon School 94 OSP 0087 

Craven County Department of Social Services 

Shirley A. Holland v. Craven Cty. Dept. /Social Services & Craven Cty. 
Nettie Jane Godwin (Lawhorn) v. Craven Cty. DSS & Craven Cty. 
Violet P. Kelly v. Craven Cty. Dept. of Social Services & Craven Cty. 

Durham County Department of Social Services 
Belinda F. Jones v. Daniel Hudgins, Durham Cty Dept of Social Svcs 93 OSP 0728 Chess 04/11/94 

Haywood County Department of Social Services 
Dorothy Morrow v. Haywood County Department of Social Services 94 OSP 0186 West 06/17/94 

Menial Health/Mental Retardation 
Yvonne G. Johnson v. Blue Ridge Mental Health 93 OSP 1604 Becton 03/18/94 

Viike County Mental Health. Developmenal Disabilities, and Substance Abuse Services 
Julia Morgan Brannon v. Wake County MH/DD/SAS 94 OSP 0214 Reilly 04/14/94 

N.C. Stale University 
Laura K. Reynolds v. N.C. State University - Dept. of Public Safety 92 OSP 0828 Morgan 05/26/94 



9:5 NCR 333 



9:9 NCR 655 



756 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



)epartment of Transportation 

jlenn 1. Hodge Jr. v. Samuel Hunt, Sec'y. Dept. of Transportation 
jlenn I. Hodge Jr. v. Samuel Hunt, Sec'y. Dept. of Transportation 
Jetey Johnston Powell v. Department of Transportation 
krnold Craig v. Samuel Hunt, Secretary Department of Transportation 
lusan H. Cole v. Department of Transportation, Div. of Motor \fehicles 
Hyde Lem Haireton v. Department of Transportation 
)arrell H. Wise v. Department of Transportation 
Henry C. Puegh v. Department of Transportation 

University of North Carolina at Chapel Bill 

Eric W. Browning v. UNC-Chapel Hill 

UNC Hospitals 

Barry Alonzo Nichols v. UNC Hospitals Central Dist. Sect. 

Wake County School System 

Lula Mae Freeman v. Wake County School System 

77k Whitaker School 

Dwayne R. Cooke v. The Whitaker School 

STATE TREASURER 

Retirement Systems Division 

Molly Wicbcnson v. Bd. /Trustees/Teaches' & State Employees' Ret. Sys. 
Nathan Fields v. Bd./Trustees/Tcacheis' & State Employees' Ret. Sys. 
John C. Russell v. Bd. /Trustees/Teachers' & State Employees' Ret. Sys. 
Robert A. Slade v. Bd./Trustees/N.C. Local Govtl. Emp. Ret. System 
Connie B. Grant v. Bd./Trustees/Teachen)' & State Employees' Ret. Sys. 
James E. Walker, Ind. & Admin for the Estate of Sarah S. Walker v. Bd./ 

Trustees/N.C. Local Govt. Emp. Ret. System 
Elizabeth M. Dudley v. Bd./Trustees/Teacheni' & State Emps* Ret. Sys. 
Kenneth A. Glenn v. Bd. /Trustees/Teachers' & St Employees' Ret. Sys. 
Joseph Fulton v. Bd./Trustees/TeacheiB' & State Employees' Ret. Sys. 
Deborah W Stewart v. Bd. /Trustees/Teachers' & State Employees' 

Ret. Sys. and Anthony L. Hope & Derrick L. Hope 

UNIVERSITY OF NORTH CAROLINA 

Nixon Omolodun v. UNC Physicians and Associates 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



93 OSP 0297* 1 


Morrison 


03/10/94 


9:1 NCR 


60 


93 OSP 0500* 1 


Morrison 


03/10/94 


9:1 NCR 


60 


93 OSP 0550 


Morrison 


03/28/94 






93 OSP 0586 


Nesnow 


07/11/94 






93 OSP 0908 


Morrison 


07/15/94 






93 OSP 0944 


Chess 


02/28/94 






93 OSP 1353 


Gray 


07/26/94 






93 OSP 1710 


Nesnow 


05/24/94 







93 OSP 0925 



94 OSP 0509 



94 OSP 0576 



94 OSP 0328 



Morrison 05/03/94 



Morrison 06/15/94 



Morrison 06/28/94 



Chess 06/02/94 



94 UNC 0295 Chess 



06/27/94 



9:5 NCR 342 



92 DST 0015 


Morgan 


05/26/94 


9:6 NCR 


403 


93 DST 0161 


Morrison 


05/18/94 






93 DST 0164 


West 


03/07/94 






93 DST 0785 


Bee ton 


03/18/94 


9:1 NCR 


68 


93 DST 0883 


Chess 


06/15/94 






93 DST 1054 


Becton 


05/31/94 


9:7 NCR 


490 


93 DST 1474 


Nesnow 


03/28/94 






93 DST 1612 


Morrison 


05/18/94 






93 DST 1731 


Becton 


05/25/94 






94 DST 0045 


Nesnow 


07/25/94 


9:10 NCR 


768 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



757 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF CARTERET 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 



DAVID W. OGLESBY, 
Petitioner, 



v. 



DIVISION OF MARINE FISHERD2S, 
Respondent, 



93 EHR 0930 



DAVID E. OGLESBY, 
Petitioner, 



v. 



93 EHR 0931 



DIVISION OF MARINE FISHERIES, 
Respondent. 



RECOMMENDED DECISION 



This contested case was heard on April 18, 1994 in Beaufort by Administrative Law Judge Thomas 



R. West. 



For Petitioner: 



For Respondent: 



APPEARANCES 

David W. Oglesby - pro se 
David E. Oglesby - pro se 

Timothy D. Nifong 
Assistant Attorney General 

ISSUE 



Is Respondent N. C. Division of Marine Fisheries' recommendation that Carteret County shellfish 
leases number 254, held by Petitioner David W. Oglesby, and number 780, held by Petitioner David E. 
Oglesby, not be renewed because each lease lies within waters that have been closed to shellfishing because 
of pollution arbitrary and capricious or otherwise unsupported by North Carolina law? 

ISSUE 

Official notice is taken of Chapter 113 of the General Statutes of North Carolina; 15A NCAC 18A 
.0900 et. seg.; and 15A NCAC 30 .0205(e). 



758 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



CONTESTED CASE DECISIONS 



WITNESSES 

For Petitioner: 

Reuben Lilly - Mill Creek resident 

Theodore Howell - Mill Creek resident, part-time commercial fisherman 

Raymond Graham - Mill Creek resident, shellfish leaseholder 

For Respondent: 

George Gilbert - Assistant Branch Chief, Shellfish Sanitation Branch, 

N. C. Division Environmental Health 
Loie Priddy - Coastal Area Surveyor, N. C. Land Resources Division 
Mike Marshall - Chief, Resource Enhancement Section, N. C. Division Marine Fisheries 

BURDEN OF PROOF 

Petitioners have the burden of proving, by the greater weight of the evidence, that the Division of 
Marine Fisheries (DMF) acted unreasonably by recommending against renewal of Petitioners' respective public 
bottom shellfish leases. 

EXHIBITS 

The following exhibits whose numbers are preceded by an "R" were placed into a trial notebook and 
introduced at the hearing by DMF. The notebook contains a "TABLE OF CONTENTS for Respondents 
Exhibits" with a description of each of the exhibits. Reference should be made to that list for a description 
of DMF's exhibits. 

R1-R7 

The following exhibits whose numbers are preceded by a "P" were prepared and introduced by 
Petitioners at hearing. A description of Petitioners' exhibits follows: 

PI - Map of Shellfish Sanitation Branch Bacteriological Sampling Station 
locations in the Newport River area, Carteret County 

P2 - Summary Table of Shellfish Sanitation Branch Bacteriological Sampling 
Data for Area E-4, 7/10/91 through 8/23/93 

STATEMENT OF THE CASE 

Petitioners' shellfish leases number 780 and 254 in Newport River, Carteret County, lie entirely 
within an area closed to shellfishing because of pollution. 

Petitioners contend that they have been singled out and treated unfairly by Respondent in that denial 
of renewal is recommended for each of their leases, while the shellfish lease of a third leaseholder whose lease 
is also located within the area of Newport River closed to shellfishing because of pollution, Mrs. Shirley 
Howell, was recently recommended for renewal by Respondent. 

The Division of Marine Fisheries (DMF) argues that the statutes and rules governing shellfish leases 
in North Carolina do not authorize the leasing of areas "recommended to be closed to shellfishing by reason 
of pollution", and that Petitioners' leases fall within the ambit of that term as it is defined by the Marine 
Fisheries Commission (MFC). DMF further contends that its decision to recommend against the renewal of 
Petitioners' leases while recommending the renewal of Mrs. Shirley Howell's lease was entirely consistent and 
supported by law. DMF therefore asserts that Petitioners have failed to establish that Respondent's decision 
to recommend against renewal of their shellfish leases was unreasonable. 



9:10 NORTH CAROLINA REGISTER August 15, 1994 759 



CONTESTED CASE DECISIONS 



Based upon the substantial evidence admitted, the undersigned finds the following: 

FINDINGS OF FACT 



1 . Petitioner David E. Oglesby is a part-time commercial fisherman residing in the Mill Creek area of 
Carteret County. Mr. David E. Oglesby holds shellfish lease number 780 in Newport River, Carteret 
County, by written agreement with Respondent agency. 

2. Petitioner David W. Oglesby, son of Petitioner David E. Oglesby, works in Chapel Hill. Mr. David 
W. Oglesby holds shellfish lease number 254 in Newport River, Carteret County, by written 
agreement with Respondent agency. 

3. G.S. 113-202 vests the Secretary of DEHNR with the authority to issue shellfish cultivation leases 
in publicly owned coastal submerged lands. Prior to January 1, 1994, that leasing authority resided 
in the MFC. 

4. Respondent DMF administers the State's shellfish leasing program according to the terms of Chapter 
113 of the North Carolina General Statutes and pertinent MFC rules. A shellfish lease may be 
granted to a North Carolina resident who applies for such lease if the proposed lease meets all leasing 
criteria set out in G.S. 113-202 and in MFC rules. 

5. G.S. 113-202 is, by its terms, applicable both to initial shellfish leases and renewal shellfish leases. 

6. The term of either an initial or a renewal lease is ten (10) years. 

7. G.S. 113-202(j) requires that each lease renewal application be accompanied by a $50.00 filing fee. 
In this case, each Petitioner paid the $50.00 application fee. 

8. G.S. 1 13-202(j) also requires that a shellfish lease-holder pay an annual rental fee of $5.00 per acre. 
The annual rental fee is due "in advance prior to the first day of April each year." For that reason, 
in a case where DMF has recommended that a lease be terminated or not be renewed and the 
termination/non-renewal proceedings encompass the January to April period, DMF accepts the 
required rental payment as if the lease was not in termination proceedings in order to preserve the 
leaseholder's right if the lease is not terminated. Thereafter, if the lease is terminated before the end 
of the rental year, DMF refunds the rental payment on a pro-rated basis for the remaining months in 
the rental year. In the case at hand, both Petitioners have paid, and Respondent has accepted, the 
$5.00 per acre rental fee for their respective shellfish leases number 780 and 254 for the period 
during which lease renewals have been pending. 

9. G.S. 1 13-202(a) provides the minimum shellfish leasing criteria for North Carolina waters. Included 
in those criteria is a provision concerning shellfish leases in areas having polluted waters: 

(6) The area leased must not include an area which the State Health Director has recommended 
be closed to shellfish harvest by reason of pollution. 

10. 15A NCAC 30 .0205(e) defines the statutory term "closed to shellfish harvest by reason of pollution" 
as follows: 

Pursuant to G.S. 113-202(a) (6), the Secretary is not authorized to 
recommend approval of renewal of a shellfish lease in an area closed to 
shellfishing by reason of pollution. Shellfish leases partially closed due to 
pollution must be amended to exclude the area closed to shellfishing prior 
to renewal. For the purposes of this Paragraph, an area will be considered 



760 9:10 NORTH CAROLINA REGISTER August IS, 1994 



CONTESTED CASE DECISIONS 



closed to shellfishing by reason of pollution when the area has been classi- 
fied as prohibited or has been closed for four (4) or more consecutive years 
prior to renewal upon recommendation by the State Health Director, except 
shellfish leases in areas which have been closed for four (4) or more years 
and continue to meet established production requirements by sale of shellfish 
through relay periods or other recognized means shall not be considered 
closed due to pollution for renewal purposes. 

11. According to DMF's interpretation of 15A NCAC 30 .0205(e), the rule establishes two (2) classes 
of shellfish growing waters wherein DMF is not authorized to recommend approval of a shellfish 
lease renewal: 

1. Waters classified as "prohibited"; and 

2. Waters closed to shellfish harvest for four (4) or more consecutive 
years immediately prior to renewal where the leaseholder has not 
met the production requirements of the lease through relaying, 
depuration and harvest. 

12. DMF believes the purpose of the rule, with regard to the second classification, is to ensure that 
leaseholders in areas that became polluted during the term of the lease were not automatically 
precluded from having their leases renewed if those shellfish leaseholders historically had met 
production requirements for their leases located in polluted areas by relaying shellfish from the closed 
area to a lease in an open area held by the leaseholder. 

13. DMF has consistently implemented Rule 15A NCAC 30 .0205(e) since its enactment; applying it only 
to those polluted area leaseholders who have "continue(d) to meet established production requirements 

... by recognized means " and not to all persons who hold shellfish leases located in closed, 

polluted areas. 

n. 

14. The Shellfish Sanitation Branch (SSB) of the Division of Environmental Health, an agency of the N. 
C. Department of Environment, Health and Natural Resources (DEHNR), classifies all potential North 
Carolina shellfish growing waters for the purposes of shellfish cultivation and harvest. 

15. Agency rules, set out at 15A NCAC 18A .0903, require SSB to complete a sanitary survey, by area, 
of potential state shellfish growing waters every (3) years. The sanitary survey consists of a shoreline 
survey to identify sources of water pollution, a hydrographic survey to evaluate meteorological and 
hydrographic factors that may affect the distribution of water pollutants, and a bacteriological survey 
to assess water quality within the meaning of SSB rules. During the three (3) year evaluation period, 
a minimum of five (5) water samples are collected annually from each of numerous sampling stations 
distributed throughout the survey area. 

16. SSB's bacteriological survey tests waters for the presence of fecal coliform bacteria. Such bacteria 
are present in the digestive tracts of all warm-blooded organisms. While fecal coliform bacteria are 
not harmful in and of themselves, they are a good indicator that the waters in which they are found 
have a high potential to contain human pathogenic organisms that may contaminate any shellfish found 
in those waters. 

17. Shellfish contaminated by such human pathogens pose a significant threat to public health. 
Consequently, SSB rules require that waters with significant concentrations of fecal coliform bacteria 
be closed to the direct harvest of shellfish for human consumption. 



9:10 NORTH CAROLINA REGISTER August 15, 1994 761 



CONTESTED CASE DECISIONS 



18. The primary reasons for such closure recommendations are twofold: 

1. To protect public health by precluding contaminated shellfish from being harvested 
and eaten or sold for consumption; and 

2. To comply with federal shellfish growing water requirements promulgated by the U. 
S. Food and Drug Administration. Failure to meet federal requirements may result 
in the banning of interstate shipments of North Carolina shellfish. 

ra. 

19. Based on the results of a sanitary survey within any growing area, potential shellfish growing waters 
are placed into one (1) of four (4) shellfish harvest categories: 

1 . Approved; 

2. Conditionally approved; 

3. Restricted; 

4. Prohibited, 

as provided for in 15A NCAC 18A .0090. 

20. The classification status assigned to an area of coastal waters through a sanitary survey remains in 
effect until the completion of the next sanitary survey for the area. 

21 . Shellfish may not be directly harvested for human consumption from either "prohibited" or 
"restricted" waters. However, under permit from DMF, shellfish may seasonally be relayed from 
restricted waters so that the shellfish may depurate (cleanse) themselves of contaminants and 
eventually be harvested for consumption. 

22. Shellfish may be harvested for human consumption from "conditionally approved" waters at such 
times as they are not posted as closed or otherwise closed to harvest. Shellfish may be harvested 
from approved waters at any time shellfish harvest is otherwise lawful. 

23. Upon receiving a written recommendation from SSB that an area of coastal waters be closed to 
shellfish harvest because of pollution, DMF takes two actions. First, the Fisheries Director issues 
a proclamation closing the waters to shellfishing as required by 15A NCAC 3K. 0101(a). Second, 
Respondent's law enforcement officers erect signs along the boundary of the closed area warning the 
public that the area is closed to the harvest of shellfish because of pollution. 

24. Following the posting of such areas, it is the responsibility of DMF's law enforcement officers to 
patrol the closed waters to ensure that polluted shellfish are not being harvested and brought to 
market. 

25. In the case of Newport River, during the last survey period (1987 through 1990), at least five (5) 
water samples were taken from sampling stations located within the area identified by SSB as 
Growing Area E-4, which includes the waters of Newport River wherein Petitioners' leases number 
780 and 254 are located. 

26. SSB's sampling station number five (5), delineated in its 1990 sanitary survey for Area E-4, and 
stations forty-three (43) and fifty-seven (57), delineated in SSB's subsequent bacteriological sampling 
data summaries for Area E-4, are located immediately adjacent to leases number 780 and 254 . 



762 9:10 NORTH CAROLINA REGISTER August 15, 1994 



CONTESTED CASE DECISIONS 



27. Based on SSB sanitary surveys, the waters overlying leases number 780 and 254 were classified as 
"restricted" under SSB's classification system at the time Petitioners applied for renewal of their 
respective shellfish leases, and remain so designated at present. 

28. The waters immediately downstream of the upper Newport River closure line are classified by SSB 
as comprising a "conditionally approved" area. 

29. The upper portion of the Newport River was originally closed to shellfishing because of pollution on 
May 29, 1974 by proclamation of the Director of the North Carolina Department of Conservation and 
Development (NCDCD). That closure resulted from a recommendation made to NCDCD in May 
1974 as a result of a sanitary survey by the SSB's predecessor agency, the Shellfish Sanitation Unit 
of the Division of Health Services. (See Exhibit R2) 

30. In response to the 1974 proclamation closing the upper reaches of the Newport River to shellfish 
harvest, DMF agents marked the closed area by erecting signs along the boundary of the closure line 
giving notice of the closure to shellfishing. As is its usual practice due to the time and cost involved 
in a formal survey, DMF established the field marking of the closure line without benefit of an actual 
field survey. Instead, the marking was based on closed area maps provided to DMF by the Shellfish 
Sanitation Unit. 

31. The upper reaches of the Newport River in the area of leases number 780 and 254 remained closed 
after the 1977, 1980, 1986 and 1990 sanitary surveys for Area E-4 because of continued pollution. 
(See Exhibit R3) 

32. The end-point coordinates of the closure line as established in May 1974 have remained constant to 
the present. 

33. Accordingly, the water overlying shellfish leases number 780 and 254 were "closed" to shellfishing 
by reason of pollution in 1990 and 1992 when the leases respectively came up for renewal and 
remained "closed" to shellfishing at the time of this hearing. 

!Y. 

34. On February 14, 1990, Petitioner David E. Oglesby applied to DMF to renew his shellfish lease 
number 780. 

35. Review of the lease application by DMF indicated that according to the posted closure line for the 
upper Newport River, approximately one-half of lease number 780 lay within waters closed to the 
taking of shellfish because of pollution. 

36. DMF informed Mr. David E. Oglesby that DMF would recommend renewal of lease number 780 
excluding that portion lying in a closed, polluted area. Mr. Oglesby accepted the proposed modified 
lease renewal. 

37. In March of 1991, DMF recommended to the Marine Fisheries Commission (hereafter "MFC") 
renewal of that portion of lease number 780 lying outside the closed, polluted area. MFC accepted 
DMF's recommendation and approved the modified renewal. 

38. In April 1991 , DMF notified Mr. David E. Oglesby that MFC had approved renewal of lease number 
780 as modified and informed him that under MFC rules, a new survey of the modified lease would 
be required prior to the formal lease contract being executed. 

39. Mr. David E. Oglesby requested that DMF verify the marking of the polluted area closure line before 
he paid for a lease survey. DMF agreed to Petitioner's request. 



9:10 NORTH CAROLINA REGISTER August 15, 1994 763 



CONTESTED CASE DECISIONS 



40. In May 1991, DMF contacted the State Geodetic Survey and requested a preliminary investigation 
of the location of the upper Newport River closure line. That investigation indicated that the actual 
line established by the May 29, 1974 closure proclamation was significantly downstream of its then 
marked location. 

41. As a result of the investigation, DMF brought the matter of the renewal of lease number 780 back 
before the MFC, which remanded the matter back to DMF for further consideration of whether any 
portion of lease number 780 was in an area open to shellfish harvest and could therefore be renewed. 

42. DMF subsequently requested that in conducting its ongoing sanitary survey for Area E-4, SSB take 
additional water samples from the Newport River in the immediate vicinity of lease number 780 to 
determine if the shellfish harvest closure line could be moved upstream so as to place all or a portion 
of lease number 780 in an area open to shellfish harvest. 

43. In response to DMF's request, SSB established two new sampling stations in Area E-4, stations 
number forty-three (43) and fifty-seven (57). (See Finding of Fact No. 26) 

44. Lease number 254 adjoins lease number 780 to the south in the Newport River. 

45. According to the posted closure line for upper Newport River as it was marked in 1991, 
approximately one-half of lease number 254 lay within waters closed to the taking of shellfish because 
of pollution. However, DMF's investigation of lease number 780 indicated that lease number 254 
also lies entirely within the polluted area established by the 1974 closure line. 

46. In January 1992, DMF notified Mr. David W. Oglesby by letter that lease number 254 was up for 
renewal in 1992 but that it presently lay in a polluted area and that SSB monitoring did not appear 
to indicate that the closure line could be moved upstream. DMF informed Mr. Oglesby that it was 
offering this information in advance since the renewal application fee was non-refundable. 

47. On February 21, 1992, Petitioner David W. Oglesby applied to Respondent to renew shellfish lease 
number 254. 

48. In May 1992, DMF asked Mr. Loie Priddy, a registered land surveyor with the State Geodetic 
Survey, using the original 1974 closure line coordinates recommended by SSB, to formally survey 
the marked closure line in the upper Newport River in order to verify its location. 

49. Mr. Priddy's May 1992 survey showed that the marked closure line was approximately 500 feet 
upstream of the actual closure line. Mr. Priddy also verified that lease number 780, as well as 
adjacent shellfish lease number 254, rather than being bisected by the closure line, lay entirely within 
the closed, polluted area. (See Exhibit R7) 

50. In February 1993, DMF requested that SSB provide a status report on its finding with respect to the 
effect of its additional monitoring in the upper Newport River on potential re-location of the shellfish 
harvest closure line. 

51. Mr. George Gilbert, Assistant Branch Head in SSB, responded that the water quality sampling data 
collected by SSB indicated at that time that there was no possibility of moving the shellfish harvest 
closure line further upstream. Mr. Gilbert also opined that it was likely that if the closure line was 
moved at all, that it would probably have to be moved further downstream. 

52. On June 28, 1993, by separate letters, DMF informed Mr. David E. Oglesby and Mr. David W. 
Oglesby that it intended to recommend denial of each of their respective lease renewals in the 
Newport River because: 



764 9:10 NORTH CAROLINA REGISTER August 15, 1994 



CONTESTED CASE DECISIONS 



1 . Each lease lay entirely within an area closed to the harvest of shellfish because of 
pollution; 

2. SSB sampling indicated that there was no reasonable possibility that the closure line 
could be moved so as to exclude their leases; and 

3. The leases do not fall under the polluted area exclusion set out by MFC Rule 15A 
NCAC 30.0205. 

53. On August 28, 19943, Mr. David E. Oglesby filed a Petition for a contested case hearing in the 
matter of DMF's decision to recommend against renewal of lease number 780. 

54. On August 30, 1993, Mr. David W. Oglesby filed a Petition for a contested case hearing in the matter 
of DMF's decision to recommend against renewal of lease number 254. 



55. Between 1974 and the inception of this contested case, Petitioners cultivated and harvested shellfish 
on the portion of their respective leases downstream of the marked upper Newport River shellfish 
harvest closure line. 

56. During that period, DMF law enforcement officers have, on several occasions, been observed 
interacting with Petitioners while they worked on their leases number 780 and 254. 

57. Mr. Theodore Howell often works shellfish lease number 285, which is held by his mother, Mrs. 
Shirley Howell, in the Upper Newport River. 

58. Lease number 285 is located upstream of leases number 780 and 254, and lies entirely with the area 
closed to shellfish harvest by reason of pollution was established by the 1974 closure line both as 
originally mis-marked and as properly located. 

59. Although shellfish lease number 285 lies entirely within a polluted area, the lease was renewed in 
1992 by the MFC upon recommendation by DMF. 

60. Mr. Howell has continuously met the minimum production requirements for lease number 285 by 
relaying shellfish from lease 285 to a second lease held by Mrs. Howell in an approved area, 
depurating them appropriately and harvesting them in sufficient quantities to meet the minimum 
production requirements established by MFC rule. As a result, and pursuant to 15 A NCAC 30 
.0205(e), DMF recommended the renewal of Mrs. Howell's Newport River lease number 285. 

61. Because they believed at least half of the leases lay within waters outside the closure line posted by 
Respondent , neither Petitioner David E. Oglesby nor Petitioner David W. Oglesby has attempted to 
meet the minimum production requirements for his respective shellfish lease by relaying and 
depurating shellfish. 

62. For the same reason, Petitioners David E. Oglesby and Petitioner David W. Oglesby have not applied 
to DMF for a lease in an open area that would allow them to relay, depurate and harvest shellfish 
from leases number 780 and 254. 

63. Petitioners have recently discussed with Mr. Raymond Graham the possibility of buying or sub-leasing 
Mr. Graham's Newport River shellfish lease in an approved area in order to relay, harvest and 
depurate shellfish from their leases number 780 and 254. Mr. Graham has indicated willingness to 
enter into such an arrangement. 



9:10 NORTH CAROLINA REGISTER August 15, 1994 765 



CONTESTED CASE DECISIONS 



64. Petitioners presented no evidence concerning the investment of time and monies in lease numbers 780 
and 254. 

Based on the foregoing, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1. G.S. 1 13-202(a)(6), read in conjunction with G.S. 113-202(p), prohibits the renewal of a shellfish 
lease that includes any area of public bottom that "the State Health Director has recommended be 
closed to shellfish harvest by reason of pollution." 

2. Since 1974, the parties have operated under the mutual mistake that leases 780 and lease 254, or at 
least significant portions thereof, are not in an area "closed" to shellfishing by reasons of pollution. 

3. The parties have operated under a mutual mistake of fact regarding the status of the waters in lease 
780 and lease 254 from 1974 until May 1991 and January 1992 respectively. 

4. The purpose of the exception to 15A NCAC 30 .0205(e) is to allow shellfish leaseholders not to be 
automatically precluded from renewing their leases when they have historically met production 
requirements for their leases located in polluted areas by relaying, depurating and harvesting in 
sufficient quantities. 

5. The mutual mistake of fact has prevented Petitioners from seeking to come within the exception to 
15A NCAC 30 .0205(e). 

6. The equitable solution to this case would be to renew Petitioners' leases upon the express conditions 
that Petitioners obtain a lease in open, approved waters and over a four (4) year period meet 
established production requirements through relay periods or other recognized means. This solution 
would require an enforcement and monitoring effort particularized to Petitioners' leases. 

7. The mutual mistake in this case has not resulted in any deprivation of Petitioners' substantial property 
rights because Respondent has not terminated the leases prior to their term and the application fees 
and rent were voluntarily paid by Petitioners at a time when the mutual mistake had been discovered. 
Petitioners have enjoyed the benefits of the leases during the pendency of these cases. There is no 
evidence of any economic loss. 

8. As a result, the equitable solution is outweiged by the need to protect the public health. 

9. Respondent's denial of Petitioners' lease renewal applications is not arbitrary and capricious or 
otherwise illegal. 

Based on the foregoing, the undersigned makes the following: 

RECOMMENDED DECISION 

The Secretary of the Department of Environment, Health and Natural Resources should deny the relief 
sought by Petitioners David W. Oglesby and David E. Oglesby. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 



766 9:10 NORTH CAROLINA REGISTER August 15, 1994 



CONTESTED CASE DECISIONS 



NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the Secretary of the North 
Carolina Department of Environment, Health and Natural Resources. 

This the 25th day of July, 1994. 



Thomas R. West 
Administrative Law Judge 



9:10 NORTH CAROLINA REGISTER August 15, 1994 767 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF MECKLENBURG 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

94DST0045 



DEBORAH W. STEWART, 
Petitioner, 



THE BOARD OF TRUSTEES OF THE 
TEACHERS' AND STATE EMPLOYEES' 
RETIREMENT SYSTEM, 
Respondent, 

and 

ANTHONY L. HOPE and 
DERRICK L. HOPE, 

Intervenors-Respondent 




This matter came on for hearing before Administrative Law Judge Dolores O. Nesnow on June 9, 
1994, in Charlotte, North Carolina. 



For Petitioner: 



For Respondent: 



APPEARANCES 

Patricia E. King 

Attorney at Law 

4000 Beatties Ford Road 

Charlotte, North Carolina 28216 

Attorney for Petitioner 

Alexander McC. Peters 

Associate Attorney General 

N. C. Department of Justice 

P. O. Box 629 

Raleigh, North Carolina 27602-0629 

Attorney for Respondent 

Paul L. Whitfield 
Attorney at Law 
1500 E. Fourth Street 
Charlotte, North Carolina 28204 
Attorney for Intervenor-Respondent 

ISSUE 



Is Petitioner entitled to the return of contributions from the Teachers' and State Employees' 
Retirement System for Barbara Hope, deceased, as well as the death benefit payable as the result of the death 
of Barbara Hope? 



For Intervenor-Respondent: 



768 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



CONTESTED CASE DECISIONS 



STATUTES AND RULES IN ISSUE 

N.C. Gen. Stat. 135-5(f) 
N.C. Gen. Stat. 135-5(1) 

EXHIBITS 

For Petitioner: 

P#l Barbara Hope's change in beneficiary form dated 8/5/93. 

P#2 Barbara Hope's change in beneficiary form dated 8/17/93. 

P#3 Letter to Deborah Stewart from Haywood County Hospital 

dated 1/21/94. 
P#4 Amended death certificate of Barbara Hope dated 6/3/94. 

For Respondent: 

R#l Barbara Hope's designation of beneficiary form dated 9/28/82. 

R#2 Barbara Hope's change in beneficiary form dated 6/9/87. 

R#3 Barbara Hope's change in beneficiary form dated 8/5/93. 

R#4 Form memo to Barbara Hope from State Retirement System 

dated 8/23/93. 

R#5 Barbara Hope's change in beneficiary form dated 8/17/93. 

For Intervenor-Respondent: 

R#6 8x10 family photo showing Barbara Hope, her husband and 

her two sons. (This exhibit was returned into the custody of 
the family) 

WITNESSES 

For Petitioner: 

Deborah W. Stewart - Petitioner 

For Respondent: 

John Marshall Barnes, III - Deputy Director, N.C. Retirement System 

For Intervenor-Respondent: 

Calvin Luckey - Barbara Hope's husband 
Derrick Hope - Barbara Hope's son 
Anthony Hope - Barbara Hope's son 

Based upon careful consideration of the testimony and evidence presented at the hearing, the 
documents and exhibits received into evidence and the entire record in this proceeding, the undersigned makes 
the following: 

FINDINGS OF FACT 

1. Barbara Hope, the deceased, was a State employee and a member of the North Carolina 
Retirement System for Teachers and State Employees, as designated in N.C. General Statute, Chapter 135. 

2. Barbara Hope had two sons, Anthony Hope and Derrick Hope, both of whom were Ms. 
Hope's natural children. 

3. In 1986, Ms. Hope married Calvin Luckey. They lived together with Derrick and Anthony 
at 446 Benjamin Street, Charlotte, North Carolina, and later at 2421 Remus Road, Charlotte, North Carolina. 



9:10 NORTH CAROLINA REGISTER August 15, 1994 769 



CONTESTED CASE DECISIONS 



4. In 1987, Barbara Hope developed a foot infection which became ulcerated and which resulted 
in her leaving State employment temporarily on disability leave. 

5. Ms. Hope was later able to return to work but in April of 1992, she suffered a stroke. She 
was placed in the intensive care unit of a Charlotte Hospital for two to three weeks and was subsequently in 
the Hospital for six and one-half weeks on rehabilitation. 

6. The stroke was severe and Ms. Hope had to relearn how to walk and talk. 

7. Mr. Luckey testified that he went to visit Ms. Hope when she was "at rehabilitation". He 
testified that he visited every day and his sons went with him on Saturday. He further testified that neither 
one of his sons has a drivers license. 

8. After her hospitalization Ms. Hope was released and returned home. 

9. Ms. Hope never again regained her normal capacity for many daily life functions such as 
tying her shoes and taking a bath. 

10. Additionally, after the stroke, Ms. Hope's mind was never again clear. She was frequently 
unable to identify her husband and her children and repeatedly asked "Who are you?" 

1 1 . Ms. Hope's son had a family photograph showing Mr. Luckey, Ms. Hope, and Anthony and 
Derrick. He would often show this photo to his mother and explain to her who each person was. 

12. Occasionally, she would remember who she was and be able to converse with her family. 

13. Often, she would cry and sob and when her husband questioned her, she would not be able 
to explain why she was crying. 

14. Occasionally, Ms. Hope would walk away from the home and would have to be brought back 
by her husband or sons. 

15. During this period of time, Ms. Hope's condition continued to deteriorate and she was in and 
out of the hospital many times. 

16. Towards the end of her life, Ms. Hope was hospitalized with a urinary tract infection. She 
also suffered from hyperthyroid anemia and non-Hodgkins Lymphoma stage four. 

17. During her last hospitalization, the doctors told the family that she was reaching the end of 
her life. 

18. On one occasion prior to Ms. Hope's final hospitalization, her niece, Deborah Stewart, picked 
up Ms. Hope at her home and drove her to the insurance company where Ms. Hope altered her policy, 
deleting her sons as beneficiaries and designating Deborah Stewart as beneficiary. 

19. On another occasion when Ms. Hope was in the hospital, her husband visited and saw 
Deborah Stewart and Deborah's mother leaving Ms. Hope's room. When Mr. Luckey went into the room, 
Ms. Hope was crying. He asked her why she was crying and she said "People are asking me so many 
questions." 

20. Subsequently, Mr. Luckey called the hospital to speak with Ms. Hope and was told that she 
had been transferred to Haywood County. When he inquired as to how the transfer had occurred, he was told 
that Ms. Hope was transferred on the authority of her niece, Deborah Stewart. 



770 9:10 NORTH CAROLINA REGISTER August 15, 1994 



CONTESTED CASE DECISIONS 



21 . Mr. Luckey later asked Ms. Stewart where Ms. Hope was and Ms. Stewart replied that she 
was somewhere in Asheville. 

22. Mr. Luckey continued to question her and eventually Ms. Stewart told Mr. Luckey that she 
had had Ms. Hope transferred to a nursing facility in Haywood County. 

23. Mr. Luckey then recalled that on the day before when he visited Ms. Hope, Ms. Hope had 
told him that she didn't want to go to Haywood County. He assured her that she didn't have to go anywhere 
she didn't want to go. 

24. After he learned where his wife was, Mr. Luckey rented a car and drove to visit her. He 
and Derrick and Derrick's Uncle John went with Mr. Luckey. When they saw Ms. Hope, she was very 
swollen over most of her body. 

25. Mr. Luckey's last visit occurred on Saturday, September 18, 1993. 

26. On Monday, September 20, 1993, at approximately 3:45 a.m., Mr. Luckey received a phone 
call from the facility in Haywood County informing him that Ms. Hope had died. 

27. Anthony testified that no one in the family gave Deborah Stewart permission to move their 
mother to Haywood County. Anthony further testified that this mother did not know what she was doing and 
did not recognize people. 

28. Derrick testified that at the time of his mother's funeral, which was being arranged by the 
Beasley Funeral Home, Mr. Beasley called and asked the two sons to come into his office. When they 
arrived, Deborah Stewart was there. 

29. Mr. Beasley asked each of the sons to sign two pieces of paper. Mr. Beasley then gave each 
of the sons $300.00 and gave a check in an unknown amount to Deborah Stewart. 

30. Derrick is unable to read and does not know what was contained in the two documents which 
he signed. 

31 . Anthony testified that he is able to read but that he does not know what was contained in the 
two documents he signed. 

32. On the following day, Deborah Stewart gave each of the sons an additional $200.00. 

33. Derrick testified that he and his brother had been the beneficiary of their mother's life 
insurance policy which they understood to be worth $10,000.00. 

34. Anthony testified that his mother had a $10,000.00 insurance policy and that both he and 
Derrick do not know what happened to the $10,000.00. 

35. Anthony testified that Deborah Stewart made all of the funeral arrangements and paid the 
funeral bill. He also testified that Deborah Stewart took his mother in her car to the insurance company to 
change the beneficiary on her insurance policy. He testified that he is certain that his mother did not know 
what she was doing. 

36. Ms. Stewart testified that Mr. Luckey had stopped paying the premiums on Ms. Hope's 
insurance policy and that Ms. Stewart told her aunt, Barbara Hope, that she would pay the premiums on the 
policy if Ms. Hope would change the beneficiary from her sons to Deborah Stewart 



9:10 NORTH CAROLINA REGISTER August 15, 1994 771 



CONTESTED CASE DECISIONS 



37. Ms. Stewart testified that she cashed one insurance policy which listed her as beneficiary and 
that out of that policy, she paid Beasley for the funeral and she gave each of the sons $300.00, leaving her 
with $3,000.00. 

38. Deborah Stewart testified that when her aunt, Barbara Hope, was in the hospital, she visited 
her many times. She testified that she and her aunt talked a lot and that her aunt believed that her children 
did not love her because they did not visit often enough. 

39. Ms. Stewart testified, but it is not found as fact, that Ms. Hope wanted to change her 
beneficiaries. 

40. Ms. Stewart made arrangements for a Notary Public, Mr. Gray, to come into theospital and 
notarize the change of benefits on the State Retirement and Death Benefits Form, changing the beneficiary 
from Ms. Hope's sons to Deborah Stewart. 

41. Ms. Stewart mailed that change of beneficiary to the State but the Notary's certification had 
been incorrectly completed. 

42. Ms. Stewart then made arrangements for another Notary Public, Hazel Elmore, to come to 
the hospital. The form was again filled out, changing the beneficiaries from Ms. Hope's two sons to Deborah 
Stewart. It was notarized and Ms. Stewart mailed it back to the State Retirement System. 

43. Although that change of beneficiary form was signed as completed on August 17, 1993, it 
apparently was not mailed to the State until sometime later. The State Retirement System received that form 
on September 20, 1993. 

44. Ms. Stewart testified that she had "power of attorney" for her aunt, Barbara Hope. She did 
not, however, have any proof of this "power of attorney" and Mr. Luckey as well as both sons, testified that 
they had no knowledge of Barbara Hope giving "power of attorney" to her niece. 

45. Ms. Stewart testified that after Ms. Hope's death, Wanda Outlaw of the State Retirement 
System, told her over the phone to mail in the original copy of Ms. Stewart's power of attorney, which Ms. 
Stewart testified that she did without keeping a copy. 

46. Ms. Stewart testified that Ms. Hope, at one time, was not able to recognize family members 
oV know who they were but that she got better and later occasionally knew who people were. 

47. Ms. Stewart has a sister who works for the State. 

48. The original death certificate for Barbara Hope listed the date of death as Sunday, September 
19, 1993. That date was incorrect and was subsequently changed and certified as Monday, September 20, 
1993, at 3:37 a.m. 

49. On Monday, September 20, 1993, Ms. Stewart also learned that her aunt had died. She then 
called the State Retirement System to report the death. 

50. Ms. Stewart testified that she did not sign any checks from the State Health Benefits Plan and 
that even though there were allegations that there were checks which were forged after Ms. Hope's death, Ms. 
Stewart was not the one who signed them. 

51. Marshall Barnes of the State Retirement System testified, and it is found as feet, that his 
office received a change of beneficiary form on Barbara Hope on August 23, 1993, but that that form had an 
incomplete notary certification. 



772 9:10 NORTH CAROLINA REGISTER August 15, 1994 



CONTESTED CASE DECISIONS 



52. Mr. Barnes confirmed that that form was returned along with a memo indicating what was 
lissing on the form. Mr. Barnes testified, and it is found as fact, that correspondence such as the above, is 
ever sent to beneficiaries, but is always sent only to the "member" of the Retirement System. 

53. The letter indicating that the form received on August 23, 1993 was incomplete, had been 
ent to Ms. Hope at 2421 Remus Road, Charlotte, North Carolina. 

54. It is unknown how Ms. Stewart received the notice of the improperly completed change of 
jeneficiary form. 

55. Mr. Barnes's office received a second change of beneficiary form on September 20, 1993, 
vhich had been signed on August 17, 1993, and notarized on that same date. 

56. Mr. Barnes testified, and it is found as feet, that Deborah Stewart called his office on 
September 20, 1993, informing him of the death. 

57. Mr. Barnes testified that the change of beneficiary form was received in his office on 
vlonday, September 20, 1993, but that the mail at his office is generally distributed at approximately 9:30 

m. to 10:00 a.m. When Ms. Stewart called, Mr. Barnes asked Ms. Stewart to inform him of the time of 
ieath and also to send a certified copy of the death certificate. 

58. On September 20, 1993, Mr. Barnes coincidentally also received a letter from Deborah 
Jtewart asking the Retirement System to send all future mail to her address. Mr. Barnes testified that this 
would not have been done but since Ms. Hope died on that date, it became unnecessary to deal with this issue. 

59. Mr. Barnes testified that since Ms. Hope died at 3:37 a.m., on September 20, 1993, he could 
oot have received the change of beneficiary form until the mail had been distributed on that same Monday, 
September 20, 1993. He further testified that since the member had died before the form had been "filed" 
with the State Retirement System as required by law, that the change of beneficiary had not been effected. 

60. N.C. Gen. Stat. 135-5(f) provides for the return of accumulated contributions upon the death 
of a member. That Statute states in pertinent part: 

(a) upon receipt of proof. . . 

(b) prior to retirement. . . 

(c) of a member or former member. . . 

(d) there shall be paid (return of contributions) 

(e) to such person or persons as the member shall have nominated by written 
designation... 

(f) duly acknowledged... 

(g) and filed with the Board of Trustees. 

61. N.C. Gen. Stat. 135-50) provides for the payment of the death benefit plan. The provision 
for payment is substantially the same as that outlined above. 

62. Neither party contests that the Retirement System received satisfactory proof of death for 
Barbara Hope. 

Based upon the above Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1 . The Respondent Retirement System asserts that the change of beneficiary form must be filed 

with the Board of Trustees prior to the member's death. None of the pertinent key words used in N.C. Gen. 



9:10 NORTH CAROLINA REGISTER August 15, 1994 773 



CONTESTED CASE DECISIONS 



Stat. 135-5(f) or (1) are defined in the Statute except for the word "filing" which is defined as meaning "the 
receipt of an acceptable application on a form provided by the Retirement System". 

In reviewing the language of those statutes, the intent appears to be clear that no monies will 
be paid out until a properly executed beneficiary form has been "filed" and there has been a receipt of proof 
of death . 

A careful and deliberate reading of the provisions of these Statutes indicates that there is no 
requirement that the member must be alive at the moment the written designation of beneficiary is "filed" with 
the Board of Trustees. 

The receipt of Barbara Hope's change of beneficiary form, which form was received several 
hours after Ms. Hope's death, designating Deborah Stewart as her sole beneficiary for both accumulated 
contributions and death benefits, is not invalid because the member died after the form was completed but 
before it was "filed". 

However, both the return of contribution statute and the death benefit statute indicate that the 
member shall have " nominated " his or her beneficiary. This "nomination" most assuredly requires that the 
member must have had the mental capacity to knowingly "nominate" a beneficiary. 

There was a great deal of evidence presented indicating that Ms. Hope was progressively non 
compis mentis. Additionally, the evidence was uncontradicted that Petitioner, who was to be the new 
beneficiary, actively arranged for the change of beneficiary both on an insurance policy and on the State 
Benefits form. Petitioner went so far as to arrange for notaries at the hospital and to request that all future 
mail from the Retirement System be sent to her. 

It was also uncontradicted that Ms. Stewart removed her aunt from the medical facility in 
Charlotte and moved her to a nursing home without informing or conferring with Ms. Hope's family. 
Further, even though one of Ms. Hope's children did not read and the other did not understand that he should 
have read the documents at the funeral home before he signed them, Mr. Stewart nonetheless arranged for 
payment of the funeral with what appears to be her aunt's insurance money, giving a token amount to Ms. 
Hope's sons. 

2. The change of beneficiary from received by the State Retirement System on September 20, 
1993, listing Deborah W. Stewart as beneficiary for accumulated contributions and death benefit on Barbara 
Hope was adequate and complete as to form when it was received by the Retirement System. 

3. However, it is concluded the Respondent did not err in refusing to pay the retirement and 
death benefits to Petitioner 

4. It is further concluded that based upon the evidence presented, Ms. Hope could not and in 
fact did not "nominate" Petitioner as the beneficiary of her retirement contributions or death benefit and the 
attempted change of beneficiary therefore was not effected. 

Based upon the above Conclusions of Law, the undersigned makes the following: 

RECOMMENDATION 

That the benefits should be paid to the last properly designated beneficiaries, Anthony and Derrick 
Hope. 



774 9:10 NORTH CAROLINA REGISTER August 15, 1994 



CONTESTED CASE DECISIONS 



ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the Board of Trustees of the 
Teachers' and State Employees' Retirement System. 

This the 22nd day of July, 1994. 



Dolores O. Nesnow 
Administrative Law Judge 



9:10 NORTH CAROLINA REGISTER August 15, 1994 775 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Speech & Language Pathologists & Audiologists 


64 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



776 



9:10 



NORTH CAROLINA REGISTER 



August 15, 1994 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1994 - March 1995) 

Pages Issue 

1 - 75 1 - April 

76 - 122 2 - April 

123 - 226 3 - May 

227 - 305 4 - May 

306 - 348 5 - June 

349 - 411 6 - June 

412 - 503 7 - July 

504 - 587 8 - July 

588 - 666 9 - August 

667 - 779 10 - August 



Unless otherwise identified, page references in this Index are to proposed rules. 



AGRICULTURE 

Plant Industry, 127 

COMMERCE 

Alcoholic Beverage Control Commission, 423 
Energy Division, 4 

CRIME CONTROL AND PUBLIC SAFETY 

State Highway Patrol, Division of, 243 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 443 

DEM/ Air Quality, 80 

Departmental Rules, 254 

Environmental Management, 81, 258, 352, 616 

Health Services, 323, 370, 445 

Mining Commission, 442 

NPDES Permit, 3, 232 

Radiation Protection Commission, 678 

Solid Waste Management, 171, 364 

Water Resources, 165, 255 

Wildlife Resources Commission, 38, 42, 84, 358 

Wildlife Resources Commission Proclamation, 125 

FINAL DECISION LETTERS 

Voting Rights Act, 2, 312, 506, 594 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 1, 123, 227, 306, 349, 412, 504, 588, 667 

HUMAN RESOURCES 

Child Day Care Commission, 10 
Children's Services, 136 



9:10 NORTH CAROLINA REGISTER August 15, 1994 777 



CUMULATIVE INDEX 



Day Care Rules, 148 

Departmental Rules, 668 

Facility Services, 4, 128, 423, 509, 668 

Medical Assistance, 318, 440, 513, 597 

Mental Health, Developmental Disabilities and Substance Abuse Services, 13, 24, 36, 313, 430 

Social Services, 136, 595 

Vocational Rehabilitation Services, 434 

INDEPENDENT AGENCIES 

State Health Plan Purchasing Alliance Board, 99 

INSURANCE 

Life and Health Division, 525 
Medical Database Commission, 605 
Multiple Employer Welfare Arrangements, 76 
Special Services Division, 76 

JUSTICE 

Alarm Systems Licensing Board, 351, 614 

Criminal Justice Education and Training Standards Commission, 149 

Sheriffs' Education & Training Standards Commission, 670 

State Bureau of Investigation, 234, 530 

LABOR 

Mine and Quarry Division, 239 
OSHA, 77, 160, 675 
Variance, 230 

LICENSING BOARDS 

Acupuncture Licensing Board, 44 

Barber Examiners, 563 

Chiropractic Examiners, 376 

Cosmetic Art Examiners, 280 

Landscape Architects, Board of, 95 

Medical Examiners, 192, 565 

Mortuary Science, 720 

Nursing, Board of, 45, 724 

Optometry, Board of Examiners, 194 

Physical Therapy Examiners, 566 

Plumbing, Heating and Fire Sprinkler Contractors, Board of, 96, 725 

Practicing Psychologists, Board of, 97 

Professional Counselors, Board of Licensed, 50 

Professional Engineers and Land Surveyors, 728 

Sanitarian Examiners, 730 

LIST OF RULES CODIFIED 

List of Rules Codified, 53, 196, 281, 378, 635, 742 

PUBLIC EDUCATION 

Elementary and Secondary Education, 375, 540 

SECRETARY OF STATE 

Land Records Management Division, 712 
Securities Division, 476, 616, 709 



778 9:10 NORTH CAROLINA REGISTER August 15, 1994 



CUMULATIVE INDEX 



STATE PERSONNEL 

Office of State Personnel, 477 

TAX REVIEW BOARD 

Orders of Tax Review, 415 

TRANSPORTATION 

Highways, Division of, 85, 718 

Motor Vehicles, Division of, 89, 276, 542 



9:10 NORTH CAROLINA REGISTER August 15, 1994 779 



NORTH CAROLINA ADMINISTRATIVE CODE 



The full publication consists of 53 volumes, totaling in excess of 15,000 pages. It is supplemented monthly 
vith replacement pages. A one year subscription to the full publication including supplements can be 
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